Birbal vs State Of Rajasthan Through Pp
2022 Latest Caselaw 7878 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                   D.B. Criminal Appeal No. 32/2016

Birbal son of Bajranglal, aged about 40 years, resident of Alsisar,
Police Station Malsisar, District Jhunjhunu (Rsjasthan)
Presently confined in Central Jail, Bikaner
                                                                   ----Appellant
                                    Versus
State Of Rajasthan Through Pubic Prosecutor
                                                                 ----Respondent

For Appellant(s)           :    Mr. Dheeraj Singhal
For Respondent(s)          :    Mr. Javed Choudhary, Addl. G. A.


         HON'BLE MR. JUSTICE PANKAJ BHANDARI
             HON'BLE MR. JUSTICE SAMEER JAIN
                        Judgment

Per: Hon'ble Mr. Justice Sameer Jain
Reserved on              06/12/2022
Pronounced on           19/12/2022

1. Instant appeal under Section 374 Cr.P.C. arises against

the judgment dated 21/06/2014 passed by the learned Additional

Sessions Judge No.2, Jhunjhunu in Sessions Case No. (43/2012)

13/2012 whereby the appellant has been convicted and sentenced

to undergo life imprisonment under Section 302 IPC with fine of

Rs.5000/- and in default of payment of fine to further undergo

additional sentence of six months.

2. Succinctly stated the facts of the case are that the

complainant-Hanumaan lodged a written report at Police Station

Malsisar, District Jhunjhunu on the basis of which an FIR bearing

No.88/2011 was registered by the Police under Section 302 IPC

and thereafter the investigation commenced. On 30/11/2011, the

police after investigation and recording statement of witnesses

under Section 161 Cr.P.C, arrested the appellant-Birbal and

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charge-sheet was filed against him under Section 302 IPC. The

case was triable by the Court of Sessions and therefore, the same

was committed to the Court of Sessions.

3. After hearing arguments, charges were framed for the

offence under Section 302 IPC and during the trial, the

prosecution examined 13 witnesses and got exhibited certain

documents in documentary evidence in support of their case.

4. The explanation of the appellant were recorded under

Section 313 Cr.P.C. wherein he denied all the allegations which

were levelled against him and pleaded innocence.

5. After consideration of evidences, statements of the

witnesses as well as the documents on record and after hearing

the arguments, the learned trial court passed judgment and

sentence dated 21/06/2014 by which the appellant was convicted

and sentenced to undergo life imprisonment under Section 302

IPC with fine of Rs.5000/-, and in default of payment of fine to

further undergo additional sentence of six months. Hence, the

present appeal.

6. At the outset, learned counsel for the appellant

submitted that in the case in hand, he is arguing on limited

ground that the appellant was wrongly convicted and sentenced

under Section 302 IPC and as a matter of fact, the appellant, at

the most, could have been convicted and sentenced under the

provisions of Section 304 Part-II of IPC, wherein the maximum

sentence is of 10 years and as the appellant has already suffered

12 years imprisonment with remission, he should be released

forthwith by altering the conviction from Section 302 to Section

304 Part-II of IPC.

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7. In support of the said contentions, learned counsel for

the appellant submitted that there was a single injury on the body

of the deceased which was caused out of grave and sudden

provocation and there was no motive or intention on part of the

appellant to commit murder. It is not a case of murder but a case

of culpable homicide not amounting to murder and the maximum

punishment for the same is 10 years, as laid out in Section 304

Part-II IPC. Learned counsel for the appellant also relied upon the

statements of PW-3, who has turned hostile. He has submitted

that Deep Chand, who is an eye-witness of the case, was not

examined by the learned trial court. Learned counsel has further

relied upon the testimonies of PW-1, PW-2, PW-4, PW-5 and PW-6,

who are all eye witnesses, to contend that as per the version of

the eye witnesses, a sudden fight broke out between uncle and

nephew, the nephew gave a blow on the face which resulted into

laceration below the left eye, in the heat of the moment, without

intending or thinking of the consequences, the accused attacked

the deceased with a kitchen knife. Learned counsel has also relied

upon the PMR and statement of PW-11 Dr. Girdhari Lal, to submit

that there was only one injury on the body of the deceased.

8. Per-contra, learned counsel for the respondent-State

submitted that it is a clear case of murder. The appellant was

intoxicated and was hurling abuses towards the deceased before

stabbing the deceased. The accused-appellant had gone to the

kitchen to retrieve a knife and gave a knife blow upon vital part

(on chest of the deceased) and as a result of which, the deceased

bled out and died, as per PMR report. Learned counsel further

submit that the knife was also recovered from the possession of

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the accused and that all the eye witnesses witnessed the accused

stabbing the deceased.

9. Heard the arguments advanced by learned counsel for

both the sides and scanned the record of the case.

10. The prosecution has established that the death of the

deceased was homicidal. As per the post mortem report, the

deceased had suffered one injury which was the cause of death.

Dr Girdhari Lal Sharma (PW-11) states in his report that the stab

wound was what caused the death and all the eyewitnesses testify

that they witnessed the accused-appellant fetching the kitchen

knife and attacking the deceased with the knife on the chest. The

recovery of the knife, i.e. the weapon used to cause the fatal

injury to the deceased was also recovered by police from the

possession of the accused.

11. We are, thus, satisfied that the prosecution has, beyond

reasonable doubt, established the occurrence in the manner as set

up. The deceased died due to the injury caused by accused. The

only question which requires our consideration is with regard to

whether the case falls within the ambit of culpable homicide

amounting to murder punishable Under Section 302 IPC or it was

culpable homicide not amounting to murder punishable Under

Section 304 Indian Penal Code, as has been argued by the counsel

for the appellant.

12. Distinction between whether an offence is culpable

homicide amounting to murder or culpable homicide not

amounting to murder has been dealt by the Hon'ble Supreme

Court in the case of Mohd. Rafiq v. State of Madhya Pradesh:

(2021) 10 SCC 706 after taking into consideration earlier

judgments on the point. The Court held that even though it is

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difficult to distinguish whether the punishment for offence would

fall Under Section 302 or Section 304 of Indian Penal Code, there

is a subtle distinction of degree of intention and knowledge

involved in both the crimes. Relevant paragraphs of the judgment

are reproduced below:

"Para 11 - The question of whether in a given case, a homicide is murder, punishable Under Section 302 Indian Penal Code, or culpable homicide, of either description, punishable Under Section 304 Indian Penal Code has engaged the attention of courts in this country for over one and a half century, since the enactment of the Indian Penal Code; a welter of case law, on this aspect exists, including perhaps several hundred rulings by this Court. The use of the term "likely" in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the Accused may or may not have killed the person. Section 300 Indian Penal Code which defines murder, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The Accused is for sure that his act will definitely cause death. It is often difficult to distinguish between culpable homicide and murder as both, involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes.

Para 12 - The decision in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. notes the important distinction between the two provisions, and their differing, but subtle distinction. The court pertinently pointed out that:

12. In the scheme of the Penal Code, "culpable homicide" is genus and murder its specie. All murder is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section

304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and

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meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300;

Para 13 - The considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, were outlined in Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh. This Court observed that:

29. 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 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 premeditation. In fact, there may not even be criminality. At the other end of 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 premeditation; (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."

13. Intention plays a vital role in criminal jurisprudence. An

offence may not be said to be committed if the prosecution fails to

prove the intention to commit that crime. Intention is pivotal to

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decide whether the accused has committed culpable homicide

amounting to murder or culpable homicide not amounting to

murder. Along with intention, knowledge and the degree of crime,

i.e. how the deceased was killed, plays an important role in

deciding.

14. In the instant case, Ex. P28 (injury report of the

accused-appellant) reflect that the accused-appellant suffered

"lacerated wound below the left eye", which was caused by the

blow inflicted by the deceased, as stated by the eye witnesses PW-

2, PW-4, PW-5 and PW-6. It was also stated by these eye

witnesses that the deceased (nephew) slapped the accused-

appellant (uncle) first. It is noted by this Court that the accused-

appellant was intoxicated and was given a hard blow of slap on

the face by the deceased, who is nephew of the accused-

appellant, approximately twenty years younger than the accused-

appellant and who was also physically well built. Therefore, it is

noted that it was the deceased-nephew who initiated the physical

altercation by slapping his uncle, the accused-appellant, and

things quickly escalated for the worse from that point onwards.

Perhaps humiliated by the slap in front of several people, the

accused-appellant was provoked and in a drunken state and

loosing self control, went and grabbed a knife from the kitchen

which was adjacent to the place of occurrence and gave a fatal

blow to the deceased.

15. It is also noted by this Court that the accused-appellant

was unhappy with the deceased and the deceased's father

because they had fixed the appellant's daughter Suman's

marriage, against the wishes of the accused-appellant. On the

unfortunate and fateful night of 30.10.2011, family tension was

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running high and the accused-appellant was arguing with the

deceased and at some point, the deceased, despite being much

younger than his uncle, slapped the accused-appellant in front of

several other family members and after being slapped, the

accused-appellant out of grave and sudden provocation grabbed

the kitchen knife and stabbed the deceased. It is also noted that

the entire ordeal was concluded in a matter of minutes.

16. Therefore, in the present case, the accused-appellant

had no intention to kill his nephew. Lack of intention can easily be

seen through the acts committed by the accused-appellant. He

was furious about getting slapped by his nephew, which acted as a

provocation for the accused. There was no premeditation, the

accused-appellant was not armed. He went to the kitchen and

found a knife and gave a single blow to the deceased and

therefore it cannot be said that the appellant had intention of

killing the deceased, who was his own nephew. In view of the

above, in our opinion, the present case falls under the exceptions

contained in Section 300 of IPC and is a simplicter case of culpable

homicide not amounting to murder, for which the maximum

punishment prescribed in Section 304 Part-II is 10 years and in

view of the same, this Court is inclined to convert the conviction

and sentence of life imprisonment under Section 302 IPC to

conviction and sentence of 10 years imprisonment under Section

304 Part-II.

17. Accordingly, the appeal is partly allowed. The judgment

dated 21.06.2014 of the trial court is modified to the following

extent:

(i) The conviction and sentence of life imprisonment under

Section 302 IPC is set aside.

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(ii) The accused-appellant is convicted under Section 304

Part-II IPC.

(iii) The appellant is awarded sentence of 10 years along

with fine as imposed by the trial court

(iv) Since the appellant has already undergone the sentence

of more than 10 years, appellant may be released forthwith, if he

is not wanted in any other criminal case.

18. In accordance with provision of Section 437A of CrPC,

the appellant-Birabal son of Bajranglal is directed to furnish a

personal bond in the sum of Rs 50,000 (Fifty Thousand) and a

surety bond in the like amount before the trial court, which shall

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

event of filing Special Leave Petition against the judgment or for

grant of leave, the appellant, on receipt thereof, shall appear

before the Hon'ble Supreme Court.

                                   (SAMEER JAIN),J                                          (PANKAJ BHANDARI),J




                                   Raghu/60









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