Naveen vs State Of Rajasthan
2021 Latest Caselaw 15640 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Appeal No. 52/2019

Naveen S/o Sav Ji Meena Damore, Aged About 34 Years, R/o Dabaycha Phala Vav Thana Pahada District Udaipur. (At Present Lodged In Central Jail, Udaipur)

----Appellant Versus State Of Rajasthan, Through PP

----Respondent

For Appellant(s) : Mr. Jitendra Ojha, Advocate For Respondent(s) : Mr. Anda Ram Choudhary, PP

HON'BLE MR. JUSTICE PRAKASH GUPTA HON'BLE MR. JUSTICE MADAN GOPAL VYAS

Judgment

18/10/2021

This D.B. Cr. Appeal has been filed by the appellant

under Section 374 (2) CrPC against the judgment dated

4.11.20216 passed by Addl. Sessions Judge, Kherwada, Distt.

Udaipur in Sessions Case No. 18/2016 (25/2012), whereby the

accused appellant has been convicted for the offence under

Section 302 IPC and sentenced to undergo life imprisonment with

a fine of Rs. 5000/-; in default of payment of fine, to further

undergo 6 months' rigorous imprisonment.

Facts of the case are that on 5.2.2012, the complainant

PW-1 Kamla submitted a written report (Ex.-P/1) at Police Station,

Pahada, Udaipur mentioning therein that on 4.2.2012 her father

and other family members had gone to Amjhera Mehman. In the

evening at about 6.00 PM, she and her mother Shanta were at the

house. In front of the house, her uncle Naveen, Pintu, Soma,

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Dinesh, Chaina were talking loudly and quarreling with each other.

Suddenly the complainant and her mother saw that quarrel was

taking place with Kanti Lal (father of the complainant) and beating

was likely to be given to him. The complainant and her mother

rushed there. When complainant's mother reached there, Naveen

gave a knife blow aside her under the arm, due to which she fell

down and blood oozed. On causing a knife blow by Naveen to

Shanta, all persons fled away. When she made hue and cry, her

father Kanti came there and after some time, her mother died.

The complainant's father caught hold the hand of Pushpa (wife of

Pratap) and for this reason, scuffle and hot talks took place. On

the basis of the aforesaid report, the police registered FIR No.

25/2012 (Ex.-P/27) and investigated the matter. After completion

of the investigation, charge sheet was filed. Thereafter trial was

conducted and after completion of trial, the trial court convicted

and sentenced the accused appellant, as indicated above. Hence,

this appeal.

At the very out-set, learned counsel for the accused

appellant has restricted his prayer and submits that that Pintu

caught hold the hand of Pushpa (brother-in-law's wife of the

deceased) and at the spur of the moment, scuffle took place

between the parties. On seeing the scuffle, the deceased Shanta

suddenly came out of the house and reached in between the

scuffle. Thus, neither there was any motive or intention of the

accused appellant to cause death of the deceased nor there was

any previous enmity between the parties. He further submits that

it is a case of single injury and death took place on account of

excessive bleeding. He further submits that PW-8 Dr. Anil Goyal in

his cross examination admitted that if treatment would have been

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given to the deceased within half an hour or one hour, her life

could have been saved. He has relied upon the judgment dated 9 th

September, 2020 passed by the Hon'ble Apex Court in the case of

Stalin Versus State represented by the Inspector of Police

(Cr. Appeal No. 577 of 2020), more particularly para 11 of the

judgment, which is reproduced as under:

"Now, the next question which is posed for

consideration of this Court is whether the case

would fall under Section 304 Part II IPC?

Considering the totality of the facts and

circumstances of the case and more particularly

that the accused inflicted the blow with a weapon

like knife and he inflicted the injury on the

deceased on the vital part of the body, it is to be

presumed that causing such bodily injury was

likely to cause the death. Therefore, the case

would fall under Section 304 Part I of the IPC and

not under Section 304 Part II of the IPC."

He submits that in the aforesaid case, the Hon'ble Apex

Court partly allowed the appeal and instead of 302 IPC, convicted

the accused under Section 304 Part I IPC. It is a case of single

injury, hence the case of the accused appellant would not travel

beyond Section 304 Part I IPC. He further submits that there was

no intention of the accused appellant to commit murder of Shanta.

Since the appellant has already served more than 9 years of

sentence, hence he may be released for the period already

undergone by him.

Learned PP appearing for the State has opposed the

same. He submits that the trial court after taking into

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consideration the entire facts and circumstances of the case, has

rightly passed the impugned judgment, hence no interference

therewith his required by this Court.

Taking into consideration the facts and circumstances of

the case and more particularly in view of the medical evidence on

record and the fact that it is case of single injury and scuffle took

place at the spur of the moment because Pintu caught hold the

hand of Pushpa (brother-in-law's wife of the deceased), there was

no intention of the accused appellant to cause death of the

deceased, there was no previous enmity between the parties, and

in the light of the judgment passed by the Hon'ble Apex Court in

the case of Stalin (sūpra), conviction of the accused appellant

from Section 302 IPC is modified to Section 304 Part I IPC.

Accordingly, the appeal is partly allowed; the judgment

dated 4.11.2016 passed by the trial court is modified and the

accused appellant is convicted for the offence under Section 304

Part I IPC instead of Section 302 IPC and his sentence is reduced

to the period already undergone by him. He be released forthwith,

if he is not required in any other case. Rest part of the judgment

dated 4.11.2016 passed by the trial court is confirmed.

Keeping in view, however, the provisions of Section

437-A CrPC, the accused appellant is directed to forthwith furnish

personal bonds in the sum of Rs. 20,000/- and a surety bond in

the like amount before the learned trial court, which shall be

effective for a period of six months to the effect that in the event

of filing of Special Leave Petition against the judgment, the

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appellant, on receipt of notice thereof, shall appear before the

Hon'ble Supreme Court.

                                   (MADAN GOPAL VYAS),J                                 (PRAKASH GUPTA),J



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