Partly allowed

Dhanpal and Anr. v. State of Rajasthan through P P

Rajasthan HC8 Dec 2017CRLA/603/2017

Case brief

AI extract

What is this about?

This High Court upheld convictions for culpable homicide not amounting to murder in a sudden fight. It reduced the principal sentence from ten to six years rigorous imprisonment and enhanced the fine to Rs. 20,000/-, directing payment to the deceased's heirs. It also directed the legal authority to pay further compensation.

What did the court decide?

Sentence reduced to six years rigorous imprisonment; fine enhanced to Rs. 20,000; order directs State Legal Services Authority to pay compensation to legal heirs.

Dhanpal and Anr. Vs State of Rajasthan… — Murder and Culpable Homicide | Rajasthan HC (2017)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Criminal Appeal No. 603 / 2017

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I. Dhanpal S/o Devi Lal B/c Bheel, R/o Shambhupura Police Station Kaithun, District Kota. (Presently in Central Jail, Kota).

¶4

Suresh S/o Dhanpal B/c Bheel, R/o Shambhupura Police Station Kaithun, District Kota. (Presently in Central Jail, Kota).

¶5

Versus

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State of Rajasthan Through P.P.

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----Respondent

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Connected With

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S.B. Criminal Appeal No. 689 / 2017

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ahanpal and Others

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Versus

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State of Rajasthan Through P P

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For Appellant(s) : Mr. Bharat Saini & Mr. Govind Prasad Rawat For Respondent(s) : Mr. B.N. Sandu, A.A.G. cum P.P. with Mr. N.S. Dhakad, Public Prosecutor

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MON'BLE MR. JUSTICE KANWAEJIT SINGH AHLBIWALIA

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Judqment /

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88/12/2087 :

¶17

The case of the prosecution, in nutshell, is that on 14th of March, 2013 at around 07:OO P.M. Dhanpal and Babulal, both brothers being sons of Devilal and Suresh son of Dhanpal with the common intention caused simple injuries to Mahendra (PW-2) and, thus, committed offence punishable under Section 323134 of the Indian Penal Code. At the said time and place, they also opened murderous assault at Rajendra (PW-I) and, thus, committed offence punishable under

¶18

Section 307134 of the Indian Penal Code. The third charge formulated against the accused stated that at the said date and time, they had caused injuries to Babloo and, therefore, committed offence of murder punishable under Section 302134 of the Indian Penal Code.

¶19

The criminal proceedings, in the present case, were set into motion on the basis of written-report (Exhibit-P/l) presented by Rajendra (PW-I) before Tejsingh (PW-23), who was then posted as Station House Officer, ~olice'Station Kaithun District Kota Rural.

¶20

On the basis of above written-report (Exhibit-P/l), a formal First Information Report (Exhibit-P/26) bearing No.90/2013 was registered at Police Station Kaithun District Kota Rural for offences punishable under Sections 302, 323 and 307, 34 of the Indian Penal Code.

¶21

The written-repo'rt (Exhi bit-P/Y), when translated into

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English reads as under :-

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"To,

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The Station House Officer Sa heb, Police Station Kaithun

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Sub : Lodging of report regarding murder of my uncle - Babloo.

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Sir,

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In the above captioned suhject, it is .submitted that I am a resident of Village Shambhupura. Today i.e, on 14.03.2013 at around 07:OO P.M. I was taking dinner at my home. On hearing the noise of shriek, I came outside the house and saw that in front of the house of Pappu, Dhanpal, Babu, Suresh and Ravi were causing injuries to my uncle - Babloo. Dhanpal was armed with dharia. Babu was armed with sariya. Suresh and Ravi, both sons of Dhanpal were armed with sticks. I went running to save my uncle - Babloo and intervened. The above said persons with the common intention to kill also caused injuries to me. I suffered injuries on the head and on my left

¶28

shoulder and also suffered injuries on the chest and on the back. Dhanpal had caused dhariya blow on my head. Ravi, Suresh and Babu had given me beating also. Dhanpal caused dhariya blow on the head of my uncle - Babloo. Babu caused injuries on his forehead. Ravi and Suresh caused injuries with the sticks. This occurrence has been witnessed by Brijmohan and Mahendra. While intervening, Mahendra was also caused injuries. Due to injuries, my uncle has died. We brought him to the Kaithun Hospital where Doctor declared him dead. The report is submitted. The legal action be taken.

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Dated 14.03.2013 Rajendra son of Shri Brijmohan"

¶30

The above said written-report/First Information Report was investigated. The accused were sent for trial in pursuance of the report of investigation submitted under Section 173 Cr.P.C. The said report of investigation, .along with the accused, after commitment to the Court of Sessions, were entrusted for' trial to the Court of Additional Sessions Judge (Women Atrocities Cases) No. I, Kota.

¶31

The prosecution, in order to secure conviction of above said three accused, examined as many as twenty-three witnesses, namely Rajendra (PW-I), Mahendra (PW-2), Smt. Gopali (PW-3), Pappu (PW-4), Brijmohan s/o Moduji (PW-5), Maina (PW-6), Sultan (PW-7), Lalit Kumar Sharma (PW-8), Banti (PW-9), Brijmohan s/o Kanaji (PW-lo), Mahaveer (PW-II), Smt. Rakesh Bai (PW-12), Radheyshyam (PW-13), Mohammad Sharif (PW-14), Rajendra son of Gopallal (PW-15), Pankaj Tyagi (PW-16), Ramlal Malav (PW-17), Ramjilal (PW-18), Ramkishan Sharma (PW-19), Rameshwar (PW-20), Khuman Singh (PW-21), Ghanshyam (PW-22) and Tejsingh (PW-23) respectively.

¶32

Thereafter, the statements of the accused were recorded under Section 313 Cr.P.C. All incriminating evidence was put to them and they denied the same.

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Dhanpal - accused took a stand that his brother - Babu was being caused injuries, hence, they reached at the spot. They had not ' caused any injury to Babloo and they have been falsely implicated.

¶34

In defence, the accused examined Babulal as DW-1 and Dhanpal himself appeared as DW-2.

¶35

The Court of Additional Sessions Judge (Women Atrocities Cases), No.1, Kota, vide its impugned judgment dated 24.01.2017, held appellants - Dhanpal and Babulal guilty of offence punishable under Section 304 I.P.C., whereas appellant - Suresh was convicted for offence punishable under Section 304134 I.P.C. Babulal and Suresh accused were convicted, substantively, for offence punishable under Section 323 I.P.C., whereas Dhanpal was convicted for offence punishable under Section 323/34 I.P.C.

¶36

The Id. trial Judge recorded acquittal of all three accused for offence punishable under Section 307 I.P.C. in alternate under Section 307134 I.P.C.

¶37

Having convicted the appellants for the above said offences, the Id. trial Judge, vide a separate order of even date, sentenced the appellants as under :-

¶38

"Accused - Dhanpal ;

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For offence u/s.304 I.P.C. he was sentenced to undergo ten years rigorous imprisonment and a fine of Rs.lO,OOO/- and in default of payment of fine to further undergo one year additional simple imprisonment.

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For offence u/s. 323/34 I.P.C. he was sentenced to ul?dergo one year simple imprisonment.

¶41

Accused - Suresh :

¶42

For offence u/s.304/34 I.P.C. he was sentenced to undergo ten years rigorous imprisonment and a fine of Rs.l0,000/- and in default of payment of fine to further undergo one year additional simple imprisonment.

¶43

For offence u/s. 323 I.P.C. he was sentenced to undergo one year simple imprisonment.

¶44

Accused - Babu Lal :

¶45

For offence u/s.304 I.P.C. he was sentenced to undergo ten years rigorous imprisonment and a fine of Rs.10,000/- and in default of payment of fine to further undergo one year additional simple imprisonment.

¶46

For offence u/s. 323 I.P.C. he was sentenced to undergo one year simple imprisonment.

¶47

All the sentences were ordered to run concurrently."

¶48

Aggrieved against the conviction\ and sentence, Dhanpal, Babulal and Suresh, all th.ree filed an appeal through Superintendent, Central Jail, Kota and the said appeal was assigned a docket number i.e. 6. B, Criminal Appeal (Jail) No. 689 of 201 7.

¶49

Dhanpal and Suresh have also preferred a separate appeal being S. B. Criminal Appeal No.603 of 2017 through their Counsel.

¶50

S. 5. Criminal Appeal No. 603 of 201 7 for the first time was listed before the Co-ordinate 'Bench on 03.04.2017 and the record was requisitioned.

¶51

The record has been received. Subsequently, it was ordered that the both the appeals shall be heard together.

¶52

After the record was received, an application for suspension of sentence was also filed.

¶53

Both the appeals and the application for suspension of sentence were listed before this Court on 01.12.2017 and on that day, the Id. Public Prosecutor had prayed for an adjournment to seek instructions.

¶54

Today, Mr. Bharat Saini, learned counsel appearing for Dhanpal and his son Suresh, and Mr. Govind Prasad Rawat, learned amicus curiae on behalf of the accused-appellants appointed by the Legal Service Authority in the Jail appeal, have jointly prayed that the sentence awarded upon the appellants may be suspended, as they have undergone an actual sentence of four years and nine months.

¶55

To counter, Mr. B.N. Sandu, learned Additional Advocate General cum Public Prosecutor appearing for the State of Rajasthan, has contended that he had o'btained iristruction.~, and the State Government has decided not to prefer any .appeal against acquittal of the accused for commission of offence punishable. under Section 302 of the Indian Penal Code. Mr. Sandu, Id. A.A.G. cum P.P. has further contended that it is a common knowledge that once sentence is suspended, the appeal itself "is not taken up for hearing. for decades and at the time of final hearing the appellants are not avai'lable, as they abscond or move away from their place of residence or appeal abates, hence, Mr. Sandu, Id. A.A.G. cum P.P. opposing the application for suspension of sentence, has praye,d that the appeal itse'lf may be decided, as the record has already been received from the Id, trial Coult.

¶56

Mr. Bharat Saini anad Mr. Govir~d Prasad Rawat, learned counsels appearing for the accused-appellants, have jointly submitted that they are ready and willing to argue the present appeals. They further submitted that either their appeals be decided or sentence awarded upon appellants be suspendbed.

¶57

On the joint request made by the learned counsels appearing for the parties, this Court proceeds to decide both the appeals on merits, after hearing both the learned counsels appearing for the parties.

¶58

Having noted the contents of the written-report (ExhibitP/1) and of the prosecution case, in brief, it will be apposite to take note of the medical evidence.

¶59

Dr. Lalit Kumar Sharma (PW-8) on 14.03.2013 at 09:40 P.M. vide Injury Report (Exhibit-P/7) had examined injured - Rajendra (PW1). In the Injury Report (Exhibit-P/7), Doctor had noted five injuries. Injury No.1 was lacerated wound 3 x 0.5 x 0.5 cm on the left parietal region. Injury Nos.2, 3, 4 and 5 were bruises on left shoulder joint, back side of thorax, right and lower side of chest respectively.

¶60

On the intervenin.g night of 14th & 15th of March, 2013 at about i2:OO A.M., Dr. Lalit. Kumar Sharma (PW-8) had examined P.lahendra (PW-2) vide Injury Report (Exhibit-P/9) and had found one lacerated wound 0.5 x 0.5 x 0.5 cm deep on the middle of lower lip.

¶61

Dr. Lalit Kumar Sharma (PW-8) on 15.03.2013 at 10:15 A.M. conducted autopsy on the dead-body of Babloo and in the Post Mortem Report (Exhibit-P/8) had noted seven injuries. Injury No.1 was a lacerated wound 5 x 3.5 x 2.5 Icm deep on the right forehead. Injury No.2 was a lacerated wound 8 x 2 x 1.5 cm deep over the right parietal region and scalp. Injury No.3 was bruise 6 x 3 cm on the left lower thorax. Injury No.4 was a lacerated wound I x 0.5 x 0.5 cm on the right elbow. Injury No.5, was bruise 6 x 0.1 cm on the right thorax. Injury No.6 was a fracture of right side parietal region of skull long and Injury No.7 was a skin deep wound on the right forehead.

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¶63

As per opinion of the Doctor, the cause of death was coma, as a result of head injury.

¶64

We may notice here that in the alleged occurrence, Babulalaccused had also received five injuries. He was examined on 15.03.2013 at 01:35 P.M. and as per Injury Report (Exhibit-D/3), injury No.1 was simple injury on the occipital region on the scalp, whereas other four injuries were on the non-vital parts of the body.

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Dhanpal accused on the intervening night of 14th & ISth March, 2013 at 01:30 A.M. was also examined and as per Injury Report (Exhibit-D/4), Dhanpal had received four injuries. Injury No.1 was a simple injury on the left ear lobule.

¶66

Rajendra (PW-I) complainant in the Court has reiterated the version as to what was stated by him in the written-report (ExhibitP/1). He has specifically attributed injury on his head to Dhanpal. In the Court, this w'itness stated that Dhanpal was armed with dhariya. This v~itness further stated that Dhanpal had caused dhariya injury on the head of his uncle Babloo, w'hereas Babulal had caused injury with the W iron-rod on the forehead of Babloo.

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Mahendra (PW-2) i'n his testimony duly corroborated the version unfolded by his brother in rela,tion complainant - Rajendra (PW-

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Smt. Gopalibai (PW-3) also stated that due to injuries caused by the accused, Babloo had died. This witness also stated that Dhanpal was armed with dhariya. Babulal was armed with iron-rod and Suresh and Ravi were armed with sticks.

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To the similar effect is the testimony of Pappu (PW-4) in front of whose house alleged occurrence had taken place.

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Brijmohan (PW-5) is father of complainant - Rajendra (PWI) and brother of Babloo (deceased). He had taken injured to the hospital.

¶71

We need not refer to the testimony of other witnesses, as Id. counsel appearing for the parties, during the course of arguments, have not referred to their statements.

¶72

Suffice it to say, Babulal accused stated that when he was returning to his house, at that time Babloo under the influence of liquor was giving beating to his wife. He had restrained him. Upon which 3abloo became annoyed and started abusing. According to Babulal, aabloo had caused injury with the pipe on his head. He further stated that at that time, Rajendra (PW-1) and Mahendra (PW-2) have also caused injuries to him. Babulal further stated that the pipe which was in the hand of Mahendra (PW-2) had hit Babloo.

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Dha,npal accused in the Court stated that Babloo was abusing his wife, he is not' aware whether Babloo was under the influence of liquor or not. Babulal had restrained him then Babloo, Mahendra and Rajendra gave beat'ing to Babulal. Babulal suffered injuries on his head and he had intervened to save him.

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Having noted the entire evidence of the prosecution and defence broadly, now I proceed to decide both the appeals together.

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Mr. Bharat Saini, learned counsel appearing for the accusedappellants, has submitted that the defence version is more probable and it is contended that it is not a case of previous enmity or inimical relations between the parties. Mr. Saini, Id. counsel has further contended that the parties before the alleged occurrence were having cordial relations. It is submitted by Id. counsel that Babloo deceased was under the influence of liquor. He was giving beativg to his wife

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when accused Babulal had intervened then Babulal and Dhanpal were caused injuries. Counsel has submitted that even though, five injuries received by Babulal proved on record vide Injury Report (Exhibit-D/3) are simple in nature. This Court should not loose sight of the fact that the injury No.1 is a lacerated wound on the occipital region and, thus, injury on the head, which is vital portion of the body cannot be selfsuffered.

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It has been contended by Id. counsel that as per Injury Report (Exhibit-D/4), Dhanpal had suffered injury on the left ear lobule, out of the total four injuries suffered by him. Mr. Saini has further contended that Dhanpal was examined on the intervening night of 14th & 15th of March, 2013 at 01:30 A.M. and furthermore, the accused has proved on record the version given by thep at the earliest by proving cross first Information Repo,rt (Exh'i bit-D/l).

¶78

In the context of above, it is urged on behalf of the appellants that the prosecution for not having explained the injuries on the person of accused has suppressed origin and genesis of the alleged Sccurrence and, thus, right of self defence ought to be extended to the accused. It is submitted that the sufferance of grievous injury is not necessary even apprehension thereof is sufficient to invoke the right of self-defence. It is canvassed by Id. counsel that since the injury on the person of Babulal is on the vital portion of the body, it is sufficient to give rise to apprehension of the sufferance of the grievous injury, therefore, this Court should record acquittal of the accused.

¶79

To counter the above arguments, Mr. B.N. Sandu, id. A.A.G. cum P.P. appearing for the State, has submitted that the injuries suffered by both accused are simple in nature and, hence, they are not required to be explained by the prosecution.

¶80

In the present case, occurrence has taken place on 14.03.2013 at 07:OO P.M. and the written-report (Exhibit-P/l) was presented to Tejsingh (PW-23), Investigating Officer on 1-4.03.2013 at 09:OO P.M. The cross version (Exhibit-D/l) was submitted on the intervening night of 14th & 15th of March, 2013. Therefore, in the cross version, it was also stated that Babloo was quarreling with his wife under the influence of liquor then on a "kaha-suni" due to intervention of Babublal incident had occurred, before that there was an altercation and exchange of abuses.

¶81

Thus, in the present case, both; the prosecution and defence have not come to the Court with the clean-hands. They have suppressed their role and have exaggerated injuries assigned to the other party. Thus, there is.no doubt that it is a case of sudden fight. The parties without any premeditation at the spur of mo~nent, due to intervention of Babu, who restrained Babloo not to give beating to his wife, came to blows. As Babloo had objected as to why Babu had intervened in the matter which is between husband and wife. Therefore, khe present case will fall under Exception 4 to Section 300 of the Indian Penal Code.

¶82

Exception 4 to Section 300 1.P.C; reads as under :-

¶83

"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.

¶84

Explanation. - It is immaterial in such cases which party offers the provocation or commits the first assault."

¶85

In view of the explanation given to Exception 4 to Section 300 I.P.C. it is immaterial as to which party was aggressor. It is also not a relevant fact that which party had suffered more injuries.

¶86

The Id. trial Judge has rightly convicted the accused for offence punishable under Section 304 I.P.C. in alternate under Section 304134 I.P.C. Even though, the Id. trial Judge has not given any adequate reasoning to record conviction of the accused for offence punishable under Section 304 I.P.C. in alternate under Section 304134 I.I'.C.

¶87

Be that as it may, this issue need not detain this Court, as !he State Government has already taken a decision not to file any appeal against acquittal of accused for offence of murder, therefore, this Couri: uphold the conviction of the appellants for offence punishable under Section 304 I.P.C.

¶88

At this juncture, Mr. Bharat Saini and Mr. Govind Prasad Rawat, learned Counsel appearing for the accused-appellants, have submitted that the appellants belong to a very poor section of the C society and this fact is evident from the record that the appeal was sent through Jail and Babulal till today is represented by a Counsel engaged by the Secretary, Rajasthan Legal Services Authority, Jaip~r.

¶89

It has been contended by the Id. counsel appearing for the accused-appellants, that the occurrence, in the present case, had taken place in the month of March, 2013 and the appellants since then are languishing behind the bars. Thus, it has been further contended by Id. counsel that the sentence awarded by the Id. trial Court upon the appellants is highly excessive and the same be considerably reduced, as the appellants have not committed any offence before or after registration of this case. If has been contended by the Id. counsel that

¶90

the antecedents of the appellants are aboveboard and they have a large family to support.

¶91

Taking mitigating circumstances spelt out by the learned counsel appearing for the parties and the finding returned by this Court that the occurrence was a sudden affair and that too had happened because accused - Babulal intervened to save the wife of Babloo deceased, this Court is of the view that the ends of justice will be fully meet in case, the sentence of ten years awarded upon the appellants is reduced. Hence, the conviction of the appellants recorded by the Id, trial Court is maintained. The conviction of appellants - Dhanp31 and Babulal bf offence under Section 304 I.P.C. is maintained, along with the conviction of Suresh recorded by the Id. trial Court under Section 304/34 I.P.C. However, the sentence of ten years awarded upon the appellants by the Id. trial Court is reduced to six years rigorous imprisonment. However, the sentence of fine recorded by the Id. trial Court from Rs.l0,000/is enhanced to Rs.20,000/-. In default of payment of fine, as ordered by the Id. trial Court, the appellants shall undergo one year simple imprisonment. The sentence awarded upon the appellants for another count is also maintained and the same shall run concurrently with the sentence reduced for offence under Section 304/34 I.P.C.

¶92

Taking totality of circumstances, this Court is of the view that the legal heirs of Babloo (deceased) are also entitled to grant of compensation under the Victim Compensation Scheme formulated by the State Government in consonance with the Section 357-A of the Code of Criminal Procedure, 1973.

¶93

The Secretary, Rajasthan State Legal Services Authority, Jaipur is directed to disburse the amount of compensation to the legal

¶94

heirs of deceased - Babloo, over and above the fine enhanced by this Court. The fine shall be disbursed to legal heirs of Babloo.

¶95

Let a copy of this order be sent to the Secretary, Rajasthan State Legal Services Authority, Jaipur.

¶96

Let a copy of this judgment be also sent to the trial Court, along with the record of the case for necessary compliance.

¶97

With the above modification in conviction and sentence, the present appeals are disposed of.

¶98

Let a copy of this order be placed in the connected appeal.

¶99

(KANWALJIT SIMGH AHLUWALIA)J.

¶100

ashok

Dhanpal and Anr. v. State of Rajasthan through P P

Case brief

What is this about?

What did the court decide?

Dhanpal and Anr. v. State of Rajasthan through P P

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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