Rajasthan High Court - Jodhpur

Goru vs State (2025:Rj-Jd:16018-Db) on 26 March, 2025

[2025:RJ-JD:16018-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                  D.B. Criminal Appeal No. 245/1996

Goru son of Bhav Singh @ Bhag Chand, resident of Kachnara,
Police Station Pratapgarh, District Chittorgarh
(At present lodged at District Jail Pratapgarh in the process of
transfer to Central Jail Udaipur)
                                                                      ----Appellant
                                       Versus
State of Rajasthan
                                                                    ----Respondent


For Appellant(s)             :     Mr. Rajeev Bishnoi, Advocate
For Respondent(s)            :     Mr. Rajesh Bhati, Public Prosecutor



           HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA

Order

26/03/2025

This Criminal Appeal is directed against the judgment dated

30th March 1996 rendered in Sessions Case No.22 of 1991.

2. Goru and Dhanna both son of Bhav Singh and Jagdish son of

Goru were put on trial to face the charge under section 302/34 of

Indian Penal Code.

3. The trial Judge acquitted Dhanna and Jagdish and held that

Goru is liable to be convicted for committing murder of Partha.

4. The case of the prosecution was narrated in the written

report dated 26th November 1990 given by the wife of Partha. In

her written report, Kajori stated that there was a quarrel between

her husband and Goru around noon on 25 th November 1990

whereupon Goru, Dhanna, Jagdish, Panna and Kudi committed

'marpeet' with her husband with 'Dhariya' and 'Nizwan'. She

[2025:RJ-JD:16018-DB] (2 of 6) [CRLA-245/1996]

further stated that Balu, Sadda and Sajjan Bai arrived at the place

of occurrence and intervened. However, by that time the accused

persons had inflicted injuries on the head and other parts of the

body of her husband who was taken to the hospital at Pratapgarh

but he passed away the next day.

5. Mr. Rajeev Bishnoi, the learned counsel for the appellant

contends that the prosecution case must fail and the appellant is

entitled for the benefit of doubt because on the same set of

evidence two similarly situated accused persons, namely, Dhanna

and Jagdish against whom similar allegations were levelled have

been acquitted by the trial Judge. The learned counsel for the

appellant makes an alternative argument that the conviction of

the appellant under section 302 of the Indian Penal Code cannot

sustain in the background of the factual scenario how the incident

took place and he can be convicted at best under section 304

Part-II of the Indian Penal Code. On the other hand, the learned

Public Prosecutor would submit that the testimony of P.W.8 who

stood to his grounds during the cross-examination is sufficient to

record conviction of the appellant for committing murder of his

own brother.

6. In the trial, the prosecution examined nine witnesses out of

whom Kajori was examined as P.W.7. According to the statement

of Kajori, she did not give any report to the police. She further

stated that she did not see the person who had committed

maarpit with her husband. P.W.2, P.W.3 and P.W.7 turned hostile

and did not support the prosecution case against the accused

persons.

[2025:RJ-JD:16018-DB] (3 of 6) [CRLA-245/1996]

7. As P.W.4, Dr. Satish Gupta tendered evidence that he found

seven injuries over the dead body of Prithviraj @ Partha.

Dr. Satish Gupta examined the body of deceased and found the

following injuries :

"1 Incised wound measuring 3x3 cm, deep up to the scalp, located slightly above the forehead.

2. Incised wound measuring 3 x 1 cm, deep up to the scalp, on the left parietal region.

3. Abrasion measuring 2 - 1/2 x 1 / 2 cm, on the right side of the forehead.

4. Bluish contusion measuring 7 x 5 cm, on the posterior side of the right thigh.

5. Abrasion measuring 3 x 2 cm, on the front side of the right knee.

6. Abrasion measuring 3 x 2 cm, on the front side of the left knee.

7. Right eye completely blackened."

8. P.W.8 Sadda who is the brother of Partha stated in the Court

that Partha had gone to the house of Goru and asked him about

the killing of the baby goat whereupon a quarrel started and Goru

assaulted Partha with Dharia. He then along with his father Bhav

Singh, Noor Mohammad, Kajori and Khemraj Patidar took Partha

to the hospital.

9. According to the learned counsel for the appellant, the

prosecution case against the appellant shall at the best fall under

Exception 4 to section 300 IPC which provides that culpable

homicide is not murder if it is committed without premeditation in

a sudden fight in the heat of passion upon a sudden quarrel. This

is also one of the conditions to bring an offending act within

Exception 4 that the offenders should not have taken undue

advantage or act in a cruel or unusual manner. Exception 4 to

section 300 Indian Penal Code is reproduced as under :

"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."

[2025:RJ-JD:16018-DB] (4 of 6) [CRLA-245/1996]

10. After having examined the materials on record, we observe

that this is not the case of the prosecution that the appellant had

any enmity with his brother Partha. The incident had happened on

a trivial issue. This is the case of the prosecution that Partha had

approached Goru and there was a verbal quarrel between both of

them. The prosecution story that Dhanna and Jagdish were part of

unlawful assembly has been disbelieved by the trial Judge and

they were acquitted of the criminal charges framed against them.

We further find that the recovery of the crime weapon pursuant to

the disclosure statement of the appellant is not free from doubt.

Moreover, the disclosure given by the appellant vide Ex. P-19 does

not fall within the sweep of section 27 of the Evidence Act,

inasmuch as, it was known to the police officer that Partha had

suffered injury with a sharp cutting weapon. Furthermore, the

seizure of 'Dharia' was made by the Investigating Officer four days

after the occurrence.

11. As it is evident from the materials on record, the occurrence

had happened on a sudden fight and this is not the case of the

prosecution that there was any premeditation. P.W.4 has tendered

evidence that there was no fracture of bone under the injury nos.1

and 2 which were caused by sharp-cutting weapon.

12. Section 304 Part-II of the Indian Penal Code provides that

culpable homicide is not murder and the accused shall be liable to

be sentenced if he had knowledge that death would be caused on

account of the injury caused by him. Section 304 of the Indian

Penal Code is reproduced as under :-

[2025:RJ-JD:16018-DB] (5 of 6) [CRLA-245/1996]

"Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;

Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

13. In the case of "Deo Nath Rai v. State of Bihar & Ors."

(2018) 13 SCC 87, the conviction of the accused who had

assaulted the deceased with a sword in a sudden quarrel on

account of a dispute relating to agricultural land was altered

under section 304-II of the Indian Penal Code and he was

sentence to rigorous imprisonment for five years. The learned

Public Prosecutor, however, contends that the number of injuries

caused to Partha indicates that the appellant has taken undue

advantage or has acted in a cruel or unusual manner. On this

point, we would refer to the decision in "Surinder Kumar v. UT,

Chandigarh" (1989) 2 SCC 217 and would hold that the appellant

is not liable to be convicted under section 302 of the Indian Penal