Partly allowed

Gamna v. State

Rajasthan HC5 Mar 2014CRLA/872/2012

Case brief

AI extract

What is this about?

In an appeal challenging a conviction for culpable homicide not amounting to murder and voluntary culpable hurt, the High Court upheld the conviction finding that a single lathi blow on the head causing death attracted Section 304 Part II IPC despite the lack of fracture. The Court modified the sentence, releasing the appellant from initial custody but enhancing the fine and specifying a residual

What did the court decide?

Conviction under S. 304(2) and 323 IPC upheld. Fine enhanced to Rs. 50,000. Sentence of ten years rigorous imprisonment modified to period already undergone; if fine increases, additional two years ri

Gamna Vs State — Murder and Culpable Homicide | Rajasthan HC (2014)

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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JUDGMENT

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S.B.CRIMINAL APPEAL NO. 872/2012 Gamna Vs. State of Rajasthan Date of Judgment : 5^th March, 2014

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P R E S E N T

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HON’BLE MR. JUSTICE MAHENDRA MAHESHWARI

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Mr.Rajendra Charan, for the appellant. Mr. K.K. Rawal, Public Prosecutor, for the State.

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- - - - BY THE COURT Reportable

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By way of this criminal appeal, the accusedappellant-Gamna, has challenged the judgment and order dated 11.9.2012 passed by the learned Sessions Judge, Bhilwara (for short 'the trial Court') in Sessions Case No. 38/2010, whereby the trial court has held the accused-appellant guilty for the offences under Sections 304 Part II and Section 323 IPC and sentenced him to undergo 10 years' rigorous imprisonment with fine of Rs. 5000/-, in default of

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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payment of fine, to further undergo six months' imprisonment under Section 304-II IPC and, one year's simple imprisonment with a fine of Rs. 1000/-, in default of the payment of fine, to further undergo one month's imprisonment for the offence under Section 323 IPC.

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The brief facts of the case as derived from the charge sheet filed by the prosecution after investigation are that on 25.10.2009, a written report was submitted by the complainant Raju at Police Station-Kachhola to the effect that the accusedappellant is the husband of deceased Bhagwani and her marriage with the accused-appellant was solemnized three years ago. Before Deepawali, the accused-appellant came to take Bhagwani with him, however, it was stated to be sent after Deepawali. On the date of occurrence, the complainant along his wife, daughter Bhagwani and son were sleeping in the field. At about 10.00 P.M, in the night, the accused Gamna came there and gave a lathi blow to the complainant which hit on his face resulting in his awakening. The accused, by dragging complainant's daughter,

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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attempted to take her away with him and upon her residence, the accused assaulted his daughter by lathi, thereby she sustained injuries on her head and blood started coming out of her mouth and she died instantaneously on the spot. The accused-appellant thereafter took her from the side of Tapri and left her dead under a Berries tree and ran away. The accused was also accompanied by Narayan S/o Parthu Kahar who was also involved in the assault. Upon such report, the first information report, bearing FIR No. 74/2009, was registered for the offences under Sections 302 and 323/34 IPC and the investigation ensued.

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After the completion of investigation, the police filed a charge-sheet against the accused-appellant Gamna. Thereafter on 24.02.2010 charges for the offences under Sections 302, 201, 323 IPC were framed against the accused-appellant and read over and explained to him, which he denied and claimed for trial. In defence, the accused-appellant, in his statement, simply stated that he has been falsely implicated in the case. The accused-appellant neither

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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brought on record any facts regarding self-defence or enmity between the parties in his statement recorded under Section 313 Cr.P.C. nor any evidence has been produced in this regard by way of the defence.

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After hearing both the parties, the learned trial court vide the judgment and order impugned held the accused-appellant guilty for the offences under Sections 304 Part-II and Section 323 IPC and sentenced him as stated above. Hence this appeal is filed by the accused-appellant, challenging the judgment and order passed by the learned trial court.

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The contention of learned counsel appearing on behalf of accused-appellant is that the impugned judgment and order passed by the learned trial court is contrary to the provisions of the law. It has been argued on behalf of the appellant that the learned trial court has erred in awarding the sentence for the offence punishable under Section 304-II IPC while not taking into account the peculiar fact that no evidence is available on record to show that the accusedappellant caused multiple injuries on the person of the deceased or caused grievous injuries by any deadly

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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weapon.

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According to the learned counsel, the matter at best, could be considered not beyond Section 325 IPC, but the learned trial court has seriously erred in considering the case to be the one falling under Section 304-II IPC ignoring the nature of injuries alleged to be caused. Learned counsel submitted that the learned trial court has passed the impugned judgment without contemplating on the sequence of happening of incident, presence of the appellant on the spot being natural as the accused-appellant is the husband of deceased and the occurrence took place at the spur of moment in the heat of passion on account of the altercation caused in respect of taking the deceased with accused-appellant to her matrimonial home. It was also the contention of the counsel for the appellant that upon consideration of all the facts and circumstances of the case, the present incident is a case of sudden accidental death as, during altercation, the deceased fell down on the earth and sustained injury resulting in her death, therefore, holding the accused appellant guilty of the offence

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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under Section 304-II IPC is contrary to the facts available on the record and the provisions of the law. Accordingly, the learned counsel prayed that the appeal may kindly be accepted and the impugned judgment and order may kindly be set aside. In support of his contentions, learned counsel has relied upon the decision reported in 2010 (2) Cr.L.R. (Raj.) 1075 (Puran Ram & Ors. Vs. State of Rajasthan), 2013 (4) Cr.L.R. (Raj.) 1755 (Mishri Vs. State of Rajasthan) and in 1996 Cr.L.R. (Raj.) 593 (Dunga Ram Vs. State of Rajasthan).

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Per contra, learned Public Prosecutor appearing for the prosecution-State supported the judgment impugned and contended that from the statement of eye witnesses PW-1 Raju and PW-10 Nandu produced by the prosecution in trial court, it is established on record that the accused-appellant went on the spot, first assaulted the father of the deceased and thereafter caused injury on the vital part of the person of the deceased. Thus, according to the learned Public Prosecutor causing the injury on the vital part of the body reflects that accused-appellant intended to cause

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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death of the deceased. Learned Public Prosecutor further contended that there is no contradiction in the testimony of the medical evidence and the ocular evidence and it is established fact on record that at the time of occurrence other persons also sustained injuries by lathi at the hands of the accused-appellant and got injured as has been caused to the deceased by the accused-appellant with lathi. In such a situation it cannot be said that the deceased died due to sustaining injury on head upon her falling down on the hard surface during altercation. Accordingly, learned Public Prosecutor contended that the impugned judgment and order passed by the learned trial court is absolutely in accordance with law, just and reasonable and the same does not require any interference by this Court, therefore, the appeal may kindly be dismissed.

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I have considered the rival submissions made on behalf of both the sides, carefully scrutinized and scanned the available documentary, oral and medical evidence on record.

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In the light of the impugned judgment passed by

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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the learned trial court and the arguments advanced by

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the learned counsel for the parties, mainly, following points arise before this Court for consideration in this appeal.

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Whether the findings recorded by the learned trial court vide the judgment impugned on the basis of the evidence produced by the prosecution regarding the presence of the accusedappellant on the spot, hitting the deceased and other injured by lathi and on account of such thwack, the deceased died and other injured persons sustained injuries, are liable to be set aside in the light of the arguments advanced in the appeal?

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Whether in absence of intention, the injury caused on the vital part of the body i.e. the skull, is not sufficient to held the accused-appellant guilty of the offence under Section 304-II?

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As regards the point No.1 narrated above,

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learned counsel for the accused-appellant, placing reliance on the decision of this Court rendered in the

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case of Dunga Ram Vs. State of Rajasthan (supra), submitted that the manner in which the deceased suffered injury on the skull, is in the sequence of events and if the intention is not

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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established, then in that situation, the accusedappellant cannot be held guilty of committing offence punishable under Section 302 or Section 304 Part-II and at the most, the accused can be held guilty of the offence under Sections 323 and 325 IPC.

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In the case under reference i.e. Dunga Ram Vs. State of Rajasthan (supra), this Court while taking note of the fact that the accused therein gave single blow on the skull of the deceased by lathi, thereby no fracture was caused and that the accused did not intent to cause such injury resulted in death of the deceased, convicted the accused therein for the offence under Section 323 IPC. So far as the factual position of the present case is concerned, according to the written report Ex.P/1 and the first information report Ex. P/10, the incident took place at 10.00 P.M. in the night, the accused-appellant first assualted on the informant Raju who is father of the deceased by lathi which hit on his face and thereafter started dragging the deceased and upon her resistence, the accused-appellant caused beating with the deceased by lathi, thereby she sustained injury on her skull,

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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blood started coming out of her mouth and she died instantaneously on the spot. In this regard, in his oral testimony, the PW-1 Raju who is father of the deceased, deposed in examination-in-chief that “his daughter Bhagwani was got married three years ago with Gamna S/o Goru, of his village”. He further deposed that “on the date of occurrence, it was nearly ten O'clock in the night, the witness and his family members viz. his wife Nandu, his daughter Bhagwani and one younger son were present there. While he was sleeping, Gamna, his daughter's husband, came with lathi and inflicted lathi blow on him thereby he suffered injury on his face and awakened and saw Gamna, his daughter's husband with lathi in his hand. Thereafter, Gamna inflicted two lathi blows to his wife also. His daughter Bhagwani who was sleeping in Tapri on the Cot was thrown out by accused Gamna, upon opposition by his daughter, Gamna assaulted his daughter by lathi on her skull thereby she fell down. Gamna gave lathi blow on her skull. On account of inflicting injury to his daughter by his daughter's husband Gamna, she suffered internal injury on her skull, as a result of which, she died on the spot

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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instantaneously.

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PW-10 Nandu, who is the mother of the deceased, has also deposed that Bhagwani is her daughter. The incident is of about 10:00 P.M. in the night. They all were sleeping in the field. The witness Nandu, her husband, Bhagwani and her younger son Kishan were sleeping. Her daughter Bhagwani was given lathi blow by Gamna. She awakened her husband and told that her daughter has been given lathi blow by Gamna, thereafter, her husband was also assaulted by Gamna. She was also given blows on her neck and back by the accused-appellant. Thereafter, Gamna dragged her daughter and dumped her under Berries tree and fled away. Bhagwani died on the spot. The witness stated that Gamna assaulted by lathi, therefore, she died on the spot.

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Both these witnesses are the eye witnesses of the occurrence, their presence on the spot is natural and both the witnesses have jointly stated in their deposition the facts regarding time of the incident, place of incident, use of lathi in causing the occurrence, and assaulting the deceased and the

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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witnesses by the accused-appellant with the lathi. There is no dispute regarding identification of the accused-appellant as he is the daughter's husband of the complainant. It has come on record that the altercation between the parties took place regarding taking of Bhagwani, the deceased, from her parental house. The learned trial court relying upon the testimony of these two eye witnesses and finding that the injuries caused are fully corroborated from the medical and oral evidence, held the appellant guilty of committing the offence. The learned trial court while keeping in mind the facts position established from the evidence produced on record that the accusedappellant out of the resentment generated owing to the fact of not sending his wife with him, assaulted on his wife and other persons and caused injuries to them proving his intention, held the accused-appellant guilty of committing offence under Section 304 Part-II IPC, which in the considered opinion of this Court, is absolutely justified in the light of the evidence available on record. In view of the intention of the accused being involved and proved in the instant case, the law propounded, in the case under reference

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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cannot be made applicable to the case in hand. The main argument of the learned counsel for the appellant in order to rescue the accused-appellant from the charge of offence under Sectaion 304-II IPC, was that due to sudden quarrel between the parties, the deceased fell down on the floor and sustained injury on her head, resulting into her death. In this regard, the doctor who was examined as PW-14, in his cross-examination has of course stated that it is feasible that the injuries mentioned in Ex.P-11 can be sustained by any person upon falling on hard surface, but the accused appellant in his defence did not take such defence under Section 313 Cr.P.C.. Further, the accused-appellant neither examined himself in defence nor produced any independent witnesses in this regard. In this view of the matter, the plea raised in defence on behalf of the accused-appellant by the counsel for the appellant regarding death of deceased upon her falling on the earth, merely on the basis of presumption suggested by the doctor, without any supporting evidence on record cannot be believed. The injury reports of injured persons namely Raju Ex.P-5, Lali Ex.P-16 and Nandu Ex.P-17 are available

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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on record describing the injuries caused on their body,

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and in their statements, the injured persons have clearly deposed that the accused-appellant has caused such injuries to them by lathi. In this view of the matter, there are ample and trustworthy evidence available on record regarding causing of the injuries by the accused-appellant on the body of the injured persons and on the skull of the deceased with the lathi.

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Coming to the point No.2 as framed above, in this regard, learned counsel appearing for the appellant while taking shelter of the decision rendered in the case of Puran Ram & Ors. Vs. State of Rajasthan (supra), contended that it is evident from the post mortem report and the medical evidence available on record that only single injury was found on the skull of the deceased, and therefore, in such a situation, the matter does not travel beyond Sections 323 and 325 IPC.

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In this regard, I have given thoughtful consideration to the entire factual position and the evidence available on record. In support of the

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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documentary evidence available on record regarding

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the injury caused on the skull of the deceased by the accused-appellant, PW-14 Dr. Chhabeel Kumar has been examined in the Court, who in his examinationin-chief stated that the physical condition of the deceased was normal. The rigor mortis was present on the body of the deceased. A little blood was found in the nose and mouth. A Hematoma of the dimensions 5cmx4cm was found in the right parital region. The membranes of the brain were healthy and congested. On opening of the hematoma of the scalp, the blood came out. Lastly, the witness stated that in his opinion, the cause of death is cardio respiratory failure due to the head injury caused. In the crossexamination, the witness stated that it is true that only one injury was found on the person of the deceased which was on her head. No repeated injury was there on the body.

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On thorough examination of the matter, in the light of aforesaid evidence, it is clear that only single injury was found on the skull of the deceased. Admittedly, according to the doctor, no fracture was

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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found on the skull of the deceased, however, on the head of the deceased hematoma and blood clotting was found. It is established on record by cogent evidence that the accused-appellant inflicted lathi blow to the deceased and the other injured persons causing various injuries. Accordingly, the learned trial court, looking to the scenario and manner in which the incident occurred, as also the intention of the appellant behind such assault, did not consider the case to be falling under Section 302 Part-I but considered it to be falling under Section 304 Part-II and accordingly convicted and sentenced as aforesaid which is perfectly justified.

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Accordingly, on merits, the appeal as against the conviction awarded by the trial court for the offences under Section 323 & 304 Part-II IPC is liable to be dismissed and it is hereby dismissed.

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On the point of sentence awarded by the learned trial court, learned counsel for the appellant contended that looking to the sequence of events and the purport which gave rise to the dispute between the parties and the fact that the appellant is behind the bar since

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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25.10.09, in view of the principles of law laid down in

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the case of Mishri Vs. State of Rajasthan (supra), the appellant may be released for the period of sentence already undergone by him.

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Learned Public Prosecutor opposed the said prayer made on behalf of the appellant and vehemently contended that the sentence awarded by the learned trial court is perfectly just, proper and reasonable and does not require any interference by this Court.

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I have heard learned counsel for the parties on the point of sentence awarded and given thoughtful consideration to the facts and circumstances of the case and the arguments advanced in this regard.

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Indisputably, the deceased Bhagwani is the wife

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of the appellant and it has come on the record from the evidence available that the appellant went to the spot for taking his wife, however, a dispute arose between the parties when the deceased was not sent with the appellant and such dispute culminated into mishap as aforesaid. Keeping in view such facts and

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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circumstances of the case, exercising the discretion vested in the Court judiciously and considering the fact that the appellant has already remained in the judicial custody for more than four years' period, it is considered just and proper that the sentence of ten years' rigorous imprisonment awarded by the learned trial court for the offence under Section 304 Part-II is modified to the period of sentence already undergone by the accused-appellant, however, the fine of Rs. 5000/- imposed for the said offence, deserves to be enhanced to Rs. 50,000/-.

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In view of the discussion made herein above, this appeal is partly allowed on the quantum of sentence. The conviction of the accused-appellant for the offences under Section 304 Part II and Section 323 IPC and the sentence awarded and the fine of Rs.1,000/- imposed for the offence under Section 323 IPC by the learned trial court vide impugned judgment dated 11.9.2012 passed in Sessions Case No. 38/2012 are maintained, however, the sentence of ten years' rigorous imprisonment and fine of Rs. 5000/- awarded for the offence under Section 304 Part-II IPC is

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S.B.Criminal Appeal No. 872/2012 (Gamna Vs. State of Rajasthan)

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modified to the period of imprisonment already undergone by the accused-appellant and the fine of Rs. 5000/- is enhanced to Rs. 50,000/-, in default of payment of fine, the appellant should undergo two years' additional rigorous imprisonment. On deposit of the total fine amount of Rs. 51,000/-, the accusedappellant shall be set at liberty if not required in any other case and the said amount of fine of Rs. 51,000/-, shall be paid to the father or family member of the deceased by the learned trial court. The record of the court below be returned forthwith.

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(Mahendra Maheshwari)J.

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Taruna

Gamna v. State

Case brief

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Gamna v. State

Case brief

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