Firoz @ Topi vs State
2021 Latest Caselaw 16220 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Appeal No. 121/2020

Firoz @ Topi S/o Sh. Khuda Bux, Aged About 39 Years, B/c Moyla Muslim, R/o Bassi, Rohat Police Station, Dist. Pali, Presently Residing As Tenant Over He House Of Shakir Bhai, Teli Colony, Pali, Tehsil And District Pali. (Lodged In District Jail, Pali).

                                                                  ----Appellant
                                   Versus
State, Through PP
                                                                ----Respondent


For Appellant(s)         :     Mr. B.S.Rathore with
                               Mr. Chandra Sen Rathore.
For Respondent(s)        :     Mr. R.R.Chhaparwal, P.P.



           HON'BLE MR. JUSTICE ARUN BHANSALI
        HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

                                Judgment

 /10/2021

The present criminal appeal under Section 374(2) Cr.P.C. has

been preferred by the accused appellant against the judgment &

order of conviction dated 1/7/2020 passed by the learned Addl.

Sessions Judge, Pali in sessions case no. 112/2015, 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.10,000/- and in default of payment of fine, to further

undergo six months' simple imprisonment.

Briefly the facts arising out from the complaint (Ex.P-27)

filed by Prakash (P.W.15) are that on 7/12/2013 the complainant

and his brother Jasraj, who earn their livelihood by running fruit

cart (Bsyk) at Surajpole on road leading to Somnath Temple, about

about 5.00 p.m. when complainant's brother Jasraj was standing

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near his fruit cart, one Firoz @ Topi - accused parked his fruit cart

full with fruits in front of his brother's fruit cart; when Jasraj

required the accused to remove the fruit cart, the accused became

angry, threatened him and went away. On 8/12/2013, Jasraj kept

holiday. On 9/12/2013 at about 9.00 a.m. Jasraj came with his

fruit cart at Surajpole and parked his fruit cart at the regular

place. At around 11.30 a.m. - 11.45 a.m. accused brought his

fruit cart and parked the same in front of Jasraj's fruit cart, which

lead to altercation. Firoz pushed Jasraj, who called the

complainant, on which he rushed towards him, by then Firoz took

sharp edged knife from his fruit cart and gave a blow on the chest

of Jasraj and ran away. Jasraj fell down and was taken to hospital,

however, he was declared 'brought dead'. That Firoz had inflicted

knife blow on chest of his brother and committed murder, steps in

this regard be taken.

On this information, a formal FIR No.701/2013 was

registered at Police Station, Pali Kotwali, District Pali for the

offence under Section 302 IPC against the accused appellant.

After conclusion of investigation, the police filed charge sheet

against the accused appellant for the offence under Section 302

IPC.

The learned trial court framed, read over and explained the

charge for the offence under Section 302 IPC to the accused

appellant, who pleaded not guilty and sought trial.

During the trial prosecution examined as many as 20

witnesses and exhibited 32 documents. On behalf of the accused,

two witnesses were examined and certain documents were

exhibited. The accused appellant was examined under Section 313

Cr.P.C. and was confronted with the evidence adduced against him

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during the course of trial, to which he denied and stated that he

has been falsely implicated and was innocent.

The learned trial court after hearing the arguments of both

the sides, convicted and sentenced the accused appellant for the

offence under Section 302 IPC vide judgment dated 1/7/2020.

Hence, this appeal.

Learned counsel for the appellant vehemently submitted that

the incident took place in heat of the moment as well as all of a

sudden on a very trivial issue with regard to parking of the fruit

cart. The accused inflicted one injury on the person of Jasraj,

which was caused by sharp knife usually found on the fruit cart,

through which the appellant was earning his livelihood. There was

no intention to cause death of Jasraj by the accused appellant.

Learned counsel drew attention to the complaint (Ex.P-27)

and statement of P.W.2 - Bharat, which have been relied on by the

learned trial court, wherein, also the allegation is of a single blow

only. It was further submitted that from the postmortem report

(Ex.24) wound has been indicated on 2 nd and 3rd rib and cause of

death has been indicated as shock due to excessive bleeding by

stab wound on chest. The Doctor who conducted postmortem, Dr.

Paras Khinchi (P.W.13), did not indicate that the injury was

sufficient to cause death and in Ex.P-25 the nature of single injury

has been indicated as simple and that the Doctor opined that the

death occurred on account of excessive bleeding.

Learned counsel for the appellant submitted that the present

was a case of single blow by accused appellant to the deceased at

the spur of the moment and since there was no repetition of

blows, there was no intention or motive of the accused during the

sudden quarrel over a trivial issue to cause fatal injury to the

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deceased, which aspect was proved from the nature of injury and

the cause of death.

Learned counsel for the appellant further prayed that the

case against the accused appellant does not travel beyond Section

304 Part II IPC. Most of the witnesses including the complainant -

real brother of the deceased have turned hostile. The conviction is

based on the statement of alleged eye witnesses, whose presence

on the spot is highly doubtful.

Reliance was placed on Kala vs. State of Rajasthan : 1992

Cr.L.R. (Raj.) 178, Shanker @ Kallu vs. State of Madhya Pradesh :

1979 SCC (Cri.) 632, Stalin vs. State : (2020) 9 SCC 524 and

Daau Ram vs. State of Rajasthan : D.B.Criminal Appeal No.

87/2019 decided on 27/5/2019.

Learned Public Prosecutor vehemently opposed the

submissions. It was submitted that P.W.2 - Bharat Sharma, P.W.4

- Gopal, P.W. 5 - Ram Lal and P.W.6 - Ramesh, who are eye

witnesses to the incident, have stated that there was physical fight

between deceased Jasraj and accused Firoz and that the appellant

had struck knife blow on the chest of deceased resulting in his

falling down and ultimately succumbing to the injury.

Submissions have been made that the statements have been

corroborated from the recovery of knife which has been duly

proved and, therefore, based on the strength of the testimony of

witnesses, the prosecution has been able to prove the offence

alleged against the accused appellant beyond all reasonable doubt

and, therefore, the trial court was justified in convicting the

accused appellant under Section 302 IPC by the impugned

judgment, which calls for no interference by this Court.

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We have considered the submissions made at the bar and

have gone through the record of the trial court as well as the

judgment dated 1/7/2020 impugned herein.

P.W.2 - Bharat Sharma indicated that on 9/12/2013 he along

with his brother Gopal were going towards Janta colony, when on

the way when they reached near Surajpole, they saw Firoz and

Jasraj pushing each other, then Firoz picked up knife from his fruit

cart and gave a blow on chest of Jasraj and ran away. He along

with Gopal, Mukesh and Ghanshyam took Jasraj to Bangad

Hospital, where he was declared dead. In his cross examination,

he stated that they called Jasraj - deceased ekek (maternal uncle), as he was in relation and when he inquired from people around

the place where Jasraj and Firoz were fighting and pushing each

other, he was told that they were fighting with regard to parking of

fruit cart on the road.

Similarly, P.W.4 - Gopal also, a passer by, indicated that

when he reached at the spot, both were fighting/pushing each

other when Firoz took knife from the fruit cart and struck a blow

on the chest of Jasraj.

Similar statements were given by P.W.5 - Ramlal and P.W.6 -

Ramesh.

Few of the witnesses like Ghanshyam (P.W.11), Usman

(P.W.12), Jitendra (P.W.14), complainant Prakash (P.W.15), Sunil

(P.W.16) and Mukesh (P.W.19) were declared hostile and were

cross examined by Public Prosecutor.

P.W.13, Dr. Paras Khinchi, who proved the injury report

(Ex.25) and Postmortem report (Ex.24), indicated that Jasraj died

due to excessive bleeding from the stab wound on the chest. He

also stated that he indicated the nature of injury as simple in the

(6 of 7) [CRLAD-121/2020]

injury report, in the cross examination he indicated that in case

proper treatment was given immediately, Jasraj would not have

died. The postmortem report (Ex.24) indicates 'cause of death as

excessive bleeding by stab wound on chest'.

It is not in dispute that both deceased Jasraj & appellant

Firoz were earning their livelihood by selling fruits on fruit cart and

were regularly doing the same at the place of incident and the

dispute between them arose on a very trivial issue regarding

parking of fruit cart for selling the fruits at the spot which resulted

in their engaging in heated altercation and suddenly at the spur of

moment, appellant Firoz inflicted a single injury on chest of Jasraj

by knife, which is readily available on a fruit selling cart.

On a careful perusal of the testimony of the material

prosecution witnesses, we find that there was no premeditation to

the incident and the fatal injury was inflicted to Jasraj by accused

Firoz by knife which is commonly carried on a fruits selling cart,

based on which it cannot be said that he was carrying knife with

the intention to commit crime. The solitary injury inflicted by the

appellant proved fatal as has been deposed by P.W.13 - Dr. Paras

Khinchi, who conducted the postmortem upon the body of the

deceased and issued postmortem report (Ex.24).

Further, it is important to notice that the Doctor in his

statement has not opined that injury was sufficient in the ordinary

course of nature to cause death and as only one injury was found

on the body of the deceased, which leads to inference that

accused had not repeated any blow and had apparently no

intention to kill Jasraj. Besides this, as per the Doctor's opinion if

proper medical care was provided to the deceased, his life could

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have been saved. Therefore, in our opinion the offence cannot

travel beyond Section 304 Part II IPC.

Hon'ble Supreme Court in the case of Shanker (supra) where

the occurrence took place suddenly and the accused caused injury

with a dagger on the neck, altered the conviction from Section

302 IPC to that of Part II of Section 304 IPC.

In the case of Kala (supra) the Division Bench of this Court,

wherein, the accused had struck the arrow on chest of the

deceased resulting in his death, on finding that there was no

intention on the part of the accused to cause death of the victim,

converted the conviction from Section 302 IPC to Section 304 Part

II IPC.

In view of what has been discussed hereinbefore, the instant

appeal is partly allowed. The appellant Firoz @ Topi is acquitted

from the charge under Section 302 IPC and instead he is convicted

for the offence under Section 304 Part II IPC simpliciter. He is in

custody since 12/12/2013 i.e. about 07 years 10 months, thus

sentence him to the period of imprisonment already undergone by

him along with fine of Rs.2,000/- and in default of payment of fine

to further undergo one month's simple imprisonment. The

appellant shall be released from custody upon depositing the

amount of fine, if not required in any other case.

The record of the case be returned back forthwith.

                                   (ANOOP KUMAR DHAND),J                                  (ARUN BHANSALI),J


                                    baweja/-









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