Jasvinder Singh@Kalu vs State Of Rajasthan Through Pp
2023 Latest Caselaw 6516 Raj/2

[2023:RJ-JP:32873-DB]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                    D.B. Criminal Appeal No. 474/2015

 Jasvinder Singh @ Kalu son of Balwant Singh, resident of
 Sarekhurd, Police Station Bhiwadi Phase-III, District Alwar.
 (confined in Central Jail, Alwar).
                                                                         ----Appellant
                                         Versus
 State Of Rajasthan Through PP
                                                                     ----Respondent

For Appellant(s) : Mr. Govind Prasad Rawat, Adv.

For State                     :       Mr. Javed Choudhary, Add.G.A.
For Complainant(s)            :       Mr. Rahul Tiwari, Adv.



            HON'BLE MR. JUSTICE PANKAJ BHANDARI
               HON'BLE MR. JUSTICE BHUWAN GOYAL

                                      Judgment

RESERVED ON                                  ::                         02/11/2023
PRONOUNCED ON                                ::                         06/11/2023

(Per - Hon'ble Pankaj Bhandari, J.)

1. The accused appellant - Jasvinder Singh @ Kalu has

preferred the instant appeal aggrieved by the judgment of

conviction and order of sentence dated 19.03.2015 whereby the

accused appellant has been convicted for offence under Section

302 of the Indian Penal Code (hereinafter referred to as "the IPC")

and has been sentenced to imprisonment for life and a fine of

Rs.2,000/-; in default of payment of fine, to further undergo one

month imprisonment.

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

07.08.2011, complainant - Karnail Singh had given a

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'parchabayan' (Exhibit-D1) to the Station House Officer, Police

Station, Bhiwadi Phase-III, Alwar stating therein that at about

12:00 noon, he had come to home after working in the fields. The

house of Balwant Singh is situated nearby and the dispute was

going on between them with regard to right of way. Balwant singh

and his son Kalu were abusing his wife and when he asked them

not to abuse, then Kalu and Banta Singh came out with guns. It is

also stated that Kalu with an intention to cause death, opened fire,

whereby his brother Pooran Singh sustained injuries on his chest

and head. Banta Singh also fired whereby he sustained injuries on

his chest and hands. His wife Premo Bai, who was also standing

there, also suffered injuries. It was also mentioned in the

parchabayan that many persons have witnessed this occurrence.

3. On the basis of said 'parchabayan', police registered the FIR

bearing No.300/2011 (Exhibit-34) on the same day i.e.

07.08.2011 and after conducting due investigation filed a charge-

sheet against the accused appellant and four other accused. After

committal of the case to the Sessions Court, the charges were

framed against them. They denied charges and sought trial. As

many as 29 witnesses were examined and 37 documents were

exhibited on behalf of the prosecution. In defence, 4 documents

were exhibited. All the accused were examined under Section 313

of the Cr.P.C. The court after hearing the arguments have

convicted the present accused appellant for offence under Section

302 of IPC and has sentenced him for life imprisonment and has

acquitted the co-accused for offence under Sections 148, 307 or

307/149 & 302/149 of IPC and 302 of IPC. Accused Balwant

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Singh, Atma Singh and Jasvinder Singh @ Kalu - present accused

appellant have also been convicted for offence under Section

323/149 of IPC and sentenced them to period already undergone.

Aggrieved by the conviction for offence under Section 302 of IPC

and sentence awarded to the accused appellant, the present

appeal has been preferred before this Court.

4. After arguing at some length, learned counsel for the

accused appellant contends that the dispute took place on the

spur of the moment. There were exchange of abuses between the

parties and the dispute pertains to right of way. The offence would

not travel beyond Section 304 Part-I of IPC. Thus, a prayer is

made that the conviction of the accused appellant for offence

under Section 302 of IPC be converted to Section 304 Part-I of

IPC. Learned counsel for the accused appellant, in support of his

submissions, has placed reliance on Division Bench Judgment of

the Rajasthan High Court in Narendra Singh & Anr. Versus State

of Rajasthan: D.B. Criminal Appeal No.887/2014 decided on

25.04.2017.

5. Learned counsel for the complainant and the learned

Additional Government Advocate have opposed the appeal. They

have contended that the conviction of the accused-appellant for

offence under Section 302 of IPC does not call for any inference by

this Court.

6. We have considered the contentions raised by learned

counsel for the parties and have carefully scanned the evidence on

record.

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7. Surendra Singh (PW-24), Investigating Officer, has deposed

that the complainant and accused parties are related to each

other. They had a dispute with regard to land and the right of way.

He has also admitted that there was pelting of stones between the

parties and one of the accused has also sustained injuries due to

the same. Mohan Meena (PW-25), who has also investigated the

case, has admitted in his cross-examination that before this

incident, there was a dispute between the complainant side and

the accused side with regard to the right of way and there was

exchange of abuses. This witness has also admitted that except

for the right of way, there was no dispute between the parties. He

has further admitted that the dispute took place on the spur of the

moment.

8. Since learned counsel for the accused appellant has not

disputed role of the accused appellant in the incident and has only

made a prayer that the offence under Section 302 of IPC be

converted to Section 304 Part-I of IPC, we are inclined to ponder

only upon the question, as to whether the case would fall within

the ambit of Section 304 part-I of IPC or not? Admittedly, the

incident took place on the spur of the moment, both the parties

are related to each other, there is a land dispute between the

parties and dispute pertaining to right of way. The dispute started

with hurling of abuses. Later, both the parties started pelting

stones on each other and if the prosecution version is to be

believed, father of the accused went home, brought a gun and

handed over the same to the accused appellant, who fired at the

deceased.

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9. As per Karnail Singh (PW-3), who is also the complainant, it

was Banta Singh, who brought the gun and handed over to his son

- present appellant. He has also stated that there was hurling of

abuses. Prakasho Bai (PW-4) has also admitted that the dispute

took place with regard to the right of way. She has also stated

that Balwant Singh handed over the firearm to his son. Gurmeet

Singh (PW-5) has also admitted that the dispute started when his

father refused to give passage to the accused side and when the

deceased refused, then Balwant Singh went to his house and

brought a 12 bore gun and handed over the same to the present

accused appellant. So admittedly, it was not the present appellant,

who brought the firearm. On the spur of moment, when hot

exchanges started between the parties, the appellant opened fire

on the deceased. Thus, the case would squarely fall within the

ambit of 'culpable homicide not amounting to murder' and the

accused thus can be held guilty for offence under Section 304

Part-I of IPC instead of Section 302 of IPC.

10. In Narendra Singh & Anr. Versus State of Rajasthan (supra),

the High Court was dealing with a similar situation and the High

Court converted the offence from Section 302 of IPC to Section

304 Part-I of IPC. Since the dispute took place at the spur of the

moment, there was no premeditation, we are of the considered

view that the present case also needs to be converted to Section

304 Part-I of IPC.

11. Consequently, the appeal filed by the accused appellant is

partly allowed; his conviction under Sections 302 of IPC is set

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aside and instead, he is convicted for offence under Section 304

Part-I of IPC and is sentenced to 10 years rigorous imprisonment

and a fine of Rs.2,000/-, in case of default in payment of fine, to

further undergo 1 month imprisonment. Since accused has

remained in custody for more than 12 years, he be set at liberty

forthwith.

12. Appellant is directed to furnish personal bond in the sum of

Rs.50,000/- and a surety bond in the like amount in accordance

with Section 437-A of Cr.P.C. before the Registrar (Judicial) within

two weeks from the date of release to the effect that in the event

of filing of Special Leave Petition against this judgment or on grant

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

before the Hon'ble Apex Court. The bail bond will be effective for a

period of six months.

                                   (BHUWAN GOYAL),J                                              (PANKAJ BHANDARI),J

                                   SUNIL SOLANKI /PS









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