Partly allowed

Ajay Ghos v. State of Rajasthan through P P

Rajasthan HC25 Jul 2023CRLA/731/2017

Case brief

AI extract

What is this about?

In criminal appeal, High Court found no intention to cause death as injury was on non-vital part. Court altered conviction from murder (302 IPC) to culpable homicide not amounting to murder (304 Part-II IPC) and reduced life sentence to ten years.

What did the court decide?

Conviction under Section 302 IPC set aside; convicted under Section 304 Part-II IPC. Sentence changed from life imprisonment to 10 years imprisonment with Rs.50,000 fine and bail granted.

Ajay Ghos Vs State of Rajasthan through P P — Murder and Culpable Homicide | Rajasthan HC (2023)

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[2023:RJ-JP:15163-DB]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Criminal Appeal No. 731/2017

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Ajay Ghos S/o Shri Dhananjay Ghos, R/o Village Aauasvali, Post West Tajpur, Police Station Chanditala, District Hugali, West Bengal, At Present Tenant In House No.3866, Kundigar Bhero Ka Rasta, Nai Ki Gali, Johari Bazar, Police Station Manak Chowk, Jaipur, Raj. At Present In Central Jail, Jaipur.

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----Appellant

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Versus

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State Of Rajasthan Through P.P.

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----Respondent

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For Appellant(s) : Mr. Govind Prasad Rawat, Adv. For Respondent(s) : Mr. Javed Choudhary, Addl.G.A.

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

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Judgment

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RESERVED ON :: 19/07/2023 PRONOUNCED ON :: 25/07/2023

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(Per Hon’ble Pankaj Bhandari, J.)

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Instant appeal under Section 374 Cr.P.C. arises out of the judgment dated 25/02/2017 passed by Shri Tirupati Kumar Gupta, R.J.S. (District Judge Cadre), learned Additional Sessions Judge No.12, jaipur Metropolitian in Sessions Case No.124/2012 whereby the appellant has been convicted and sentenced to undergo life imprisonment under Section 302 IPC with fine of Rs.1,00,000/and in default of payment of fine to further undergo additional sentence of two years simple imprisonment.

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Succinctly stated the facts of the case are that on 10.07.2012 the complainant- Narendra Kumar Sharma lodged a written report

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at Police Station Ramganj, District Jaipur, on the basis of which an FIR bearing No. 265/2012 was registered by the Police under Section 302 IPC and thereafter, the investigation commenced. The police after investigation filed charge-sheet against the appellant for offence under Section 302 IPC and Section 4/25 of Arms Act. The case was triable by the Court of Sessions and therefore, the same was committed to the Court of Sessions and ultimately, the case was came to be transferred in the court of learned Additional Sessions Judge No.12, Jaipur Metropolitan for trial.

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After hearing the arguments on charge, learned trial court framed charges for the offence under Section 302 IPC and Section 4/25 of Arms Act. The accused-appellant denied the charges and sought trial. During the trial, the prosecution examined 28 witnesses and got exhibited 54 documents in evidence in support of their case. The explanation of the appellant was recorded under Section 313 Cr.P.C. wherein he denied all the prosecution case and stated that he was falsely implicated in the case.

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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 25/02/2017 by which the appellant was convicted for offence under section 302 IPC and was acquitted for the offence under Section 4/25 of Arms Act. For offence under section 302 IPC, appellant was sentenced to undergo life imprisonment with fine of Rs.1,00,000/-, and in default of payment of fine to further undergo additional sentence of 2 years simple imprisonment. Hence, the present appeal.

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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 11 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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in this regard, counsel has placed reliance upon the judgments rendered in the case of Adu Ram V. Mukna & Ors. : (2004) AIR (SC)5064 and Gokul Parashram Patil Vs. State of Maharashtra : (1981)AIR(SC)1441, wherein the Apex Court had modified the conviction and converted the sentence of the accused from Section 302 IPC to Section 304 Part II IPC while observing that the injuries caused to the deceased were caused on the nonvital parts of the body and the accused did not intend to cause the injury.

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Learned Additional Government Advocate has opposed the appeal, but has not disputed the fact that the case of appellant could not travel beyond Section 304 Part-II of IPC and that conviction can be altered from Section 302 to Section 304 Part-II of IPC.

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Heard the arguments advanced by learned counsel for both the sides and perused record of the case.

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The only question which requires our consideration is that whether the case of the accused appellant falls within the ambit of

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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 learned counsel for the appellant.

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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 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:

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“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

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very wide variance of degree of intention and knowledge among both the crimes.

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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:

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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 recognizes 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 Section304. 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.

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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 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;

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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 @

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Nagaraja Reddy v. State of Andhra Pradesh. This Court observed that:

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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 304Part 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

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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.”

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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 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 the same.

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Admittedly, in the present case in hand, the injury was caused on the hands which is non-vital part of the body, which goes to show that accused had no intention to kill the deceased. Therefore, in our opinion, considering the above and the judgments cited by learned counsel for the appellant, the present case falls under the exceptions contained in Section 300 of IPC and is a simplicitor case of culpable homicide not amounting to murder, for which the maximum punishment prescribed in Section 304 Part-II IPC is 10 years imprisonment 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 of IPC.

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Accordingly, the appeal is partly allowed. The judgment dated 25.02.2017 of the trial court is modified to the following extent:

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(i) The conviction of accused-appellant for the offence under Section 302 IPC is set aside and instead, accused-appellant is convicted for offence under Section 304 Part-II of IPC.

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(ii) Consequently, the sentence of life imprisonment is also set-aside and instead, the accused-appellant is awarded sentence of 10 years along with fine of Rs.50,000/- and in default of payment of fine, to further undergo 1 year simple imprisonment.

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Accused-Appellant-Ajay Ghos 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.

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The record of the Trial Court be sent back forthwith.

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(BHUWAN GOYAL),J

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(PANKAJ BHANDARI),J

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SUNIL SOLANKI /PS

Ajay Ghos v. State of Rajasthan through P P

Case brief

What is this about?

What did the court decide?

Ajay Ghos v. State of Rajasthan through P P

Case brief

What is this about?

What did the court decide?

What the court decided

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