Judgment:
Garg, J.
1. This appeal has been filed by the accused appellant against the judgment and order dated 17.12.1987 passed by the learned Sessions Judge, Bhilwara in Sessions Case No. 5/87, by which he acquitted the accused appellant of the charges for the offence under Sections 147, 323 IPC, but convicted him for theoffence under Section 304 Part-I IPC in place of 302 IPC and sentenced him to undergo seven years RI and to pay a fine of Rs. 1,000/-, in default of payment of fine, to further undergo RI for six months. By the same judgment, the learned Sessions Judge has acquitted the accused Narain, Chatra, Naula, Surja and Ramnath of the charges for the offence under Sections 147, 323/149 and 302/149 IPC.
2. The facts giving rise to this appeal, in short, are as follows :-
On 12.11.1986 at about 7.00 PM, a report Ex.P/6 alleged to have been written by PW-8 Sonath was presented in the Police Station Kachhola District Bhilwara by PW9 Devi Lal and in that report, it was stated that on that day at about 2.30-3.00 PM, PW8 Sonath was in his house and his sister Mst. Ladu (hereinafter referred to as the deceased) wife of Gopi was being brought in a Truck by PW1 Jagdish Chandra and DW1 Babu and when PW8 Sonath Saw deceased, he found that she had already died and she was having injuries on her head, back and left ribs and blood was also coming out. It was further stated in the report that he heard that she was being killed by her in-laws' of the village Onkarpura and he sent PW-5 Mauja to give information about the death of the deceased and thereafter, after half an hour, his niece Jadav, PW7 (wife of the accused appellant) came there and told him that she alongwith deceased and her children Mema and Jailal was going towards village Ghewariya and when they reached near the Bhuriya Valley near Richiya Magra, then on the way, her husband (accused appellant) and other accused persons Chatra, Surja, Narain, Naula and Ramnath met and at that time, accused appellant was having a lathi in his hand and when accused appellant tried to take his wife PW-7 Jadav forcibly, deceased intervened and upon this, accused appellant gave a lathi blow on the head of the deceased, as a result of which, she fell down on the earth and, thereafter, she was further beaten by the accused appellant. It was further informed by PW7 Jadav that she was also beaten by the accused appellant and she was forcibly taken by the accused persons in the village Onkarpura where she was put in a room and the room was closed and, thereafter, after one hour, accused Chatra opened the door and she was informed that deceased had been taken to village Ghewariya and, thereafter, she also went to village Ghewariya and PW7 Jadav came to know that her mother had died.
On this report, police registered the case and chalked out regular FIR Ex.P/11 and started investigation.
During investigation, post mortem of the dead body of the deceased was got conducted by PW2 Dr. Satya Prakash on 13.11.1986 and the post mortem report is Ex.P/2, where it was opined that the cause of death of the deceased was head injury resulting in extradural haemorrhage.
After usual investigation, the police submitted challan against the accused appellant and five other persons in the Court of Magistrate and from where the case was committed to the Court of Session.
On 23.2.1987, the learned Sessions Judge, Bhilwara framed the charges for the offence under Sections 147, 302, 323 IPC against the accused appellant and for the offence under Sections 147, 302/149, 323/149 IPC against rest accused persons. The charges were read over and explained to the accused persons, who pleaded not guilty and claimed trial.
In support of its case, the prosecution examined as many as 12 witnesses and got exhibited several documents. Thereafter, the statements of the accused persons under Section 313 Cr.P.C. were recorded. In defence, one witness was produced by the accused persons.
After conclusion of trial, the learned Sessions Judge, Bhilwara through his judgment and order dated 17.12.1987 acquitted the accused Narain, Chatra, Naula, Surja and Ramnath of all the charges framed against them and also acquitted the accused appellant of the charges for the offence under Sections 147, 323 IPC, but convicted himfor the offence under Section 304 Part-I IPC in place of 302 IPC and sentenced in the manner as indicated above holding inter-alia :-
1. That theory of the defence that deceased received injuries because of falling from the Tractor was disbelieved and thus, the learned Sessions Judge did not place reliance on the statements of PW1 Jagdish Chandra and DW1 Babu.
2. That PW7 Jadav, wife of the accused appellant, was assessed as an eye witness of the alleged incident, but her whole statement was not found believable by the learned Sessions Judge and that part of her statement where she has stated that accused appellant gave lathi blow on the head of the deceased, was found reliable.
3. That statement of PW7 Jadav on the point that other accused persons also beat deceased was not found believable by the learned Sessions Judge.
4. That in giving lathi blow on the head of the deceased, the accused appellant had no intention to murder her and therefore, he came to the conclusion that the act of the accused appellant would be covered by the provision of Section 304 Part-I IPC and thus, he had convicted the accused appellant for the offence under Section 304 Part-I IPC instead of 302 IPC.
Aggrieved from the said judgment and order dated 17.12.1987 passed by the learned Sessions Judge, Bhilwara, this appeal has been filed by the accused appellant.
3. In this appeal, the following submissions have been made by the learnedcounsel appearing for the accused appellant:-
(1) That as per the prosecution story the accused appellant was taking his wife PW-7 Jadav for which he was entitled to and when deceased tried to stop him, if any act thereafter was committed by the accused appellant, that was committed by him in exercise of right of private defence.
(2) That by causing injury on the head of the deceased, which was found grievous one, the act of the accused appellant does not travel beyond the scope of Section 325 IPC and thus, the findings of conviction for the offence under Section 304 Part-I IPC recorded by the learned Sessions Judge are erroneous one and they should be set aside.
(3) That if the court comes to the conclusion that the accused appellant has only committed the offence punishable under Section 325 IPC, then he should be given the benefit of Probation of Offenders Act, 1958.
4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order dated 17.12.1987 passed by the learned Sessions Judge, Bhilwara.
5. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case.
6. Before proceeding further, first medical evidence of this case has to be seen, which is found in the statement of PW-2 Dr. Satya Prakash.
7. PW2 Dr. Satya Prakash states on oath that on 13.11.1986 he was Medical Officer, in the Primary Health Centre Kachhola and on that day he conducted the post mortem of the dead body of the deceased and found the following external and internal injuries :-
External injuries
(1) Lacerated wound 2cm x 1cm x 1/2 cm irregular margins, on left temporal region, clotted blood coming out.
(2) Bruise 1cm x 1cm in between two breasts.
(3) Abrasion 2cm x 1cm in right lower leg.
(4) Abrasion 1cm x 1cm on right
knee anteriorly. Internal injury
(1) Fracture of temporal bone 1cm x 1cm depressed area extradural haemorrhage present dura and brain tissues congested.
He has further stated that the cause of death of the deceased was head injury resulting in extradural haemorrhage. He has proved the post mortem report Ex.P/2.
8. Thus, from the statement of PW-2 Satya Prakash, the fact that death of the deceased was homicidal one is well proved and it is also proved that deceased died because of the head injury.
9. In this case, the fact that accused appellant caused injuries to deceased, especially on the head is not in dispute and the same is well proved from the statement of PW-7 Jadav, who is wife of the accused appellant, wherein she has categorically stated that one lathi blow was given by the accused appellant on the head of the deceased, as a result of which, she fell on the ground and later on she was brought in a Truck by PW-1 Jagdish Chandra and DW-1 Babu and she succumbed to her injuries on the way.
Point No. 1
10. The Hon'ble Supreme Court in Yogendra Morarji v. The State of Gujarat, AIR 1980 SC 660, has set out the extent and limitations on the exercise of the right of private defence in the following manner :-
'The right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is coterminous with the duration of such apprehension : that is to say, right avails only against a danger imminent, present and real.'
11. In the present case, from the facts as found in the statement of PW-7 Jadav, it appears that when accused appellant tried to take his wife PW-7 Jadav, deceased intervened and upon this, accused appellant gave a lathi blow on the head of the deceased. Thus, from perusing the statement of PW-7 Jadav, it does not appear that deceased gave any provocation and she was not armed with any kind of weapon and thus, it cannot be said that there was a reasonable imminent apprehension of any danger to the accused appellant with respect to his person and in these circumstances, the accused appellant had no right of private defence at that time to cause injuries to the person of the deceased.
12. Thus, it is held that in the present case no right of private defence was available to the accused appellant and what to talk of private defence, even no case for exceeding right of private defence is made out in favour of the accused appellant. From every point of view, the accused appellant was aggressor in the present case and thus, the argument that the accused appellant had right of private defence in causing injury to the deceased, stands rejected.
Point No. 2
13. The next question that arises for consideration is whether the findings of the learned Sessions Judge convicting the accused appellant for the offence under Section 304 Part-I IPC are liable to be confirmed one or not.
14. The learned Sessions Judge has clearly observed in his judgment that there was no intention on the part of the accused appellant to murder deceased, but how he has covered the act of the accused appellant under the provisions of Section 304 Part-I IPC, it is not clear in his judgment and it appears that he has misread the various provisions of Section 300 IPC.
15. Section 299 IPC defines culpable homicide as the act of causing death (i) with the intention of causing death, or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such act is likely to cause death.
16. The first and second clauses of the Section refer to intention apart from knowledge and the third clause refers to knowledge apart from intention.
17. The word 'homicide' has been derived from Latin terms homo (man) and cido (cut). Homicide is the killing of a human being by a human being.
18. Whenever a Court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it will be convenient for it to approach the problems in three stages. The question to be considered at the first stage could be whether the accused has done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the death, lends to the second stage for considering whether the act of the accused amounts to 'culpable homicide' as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 IPC, is reached. The is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the first part of Section 304 IPC.
19. Section 300 IPC deals with murder. It does not define 'murder'. Section 299 explains 'culpable homicide'. This section sets out circumstances when culpable homicide amounts to murder and when it does not amount to murder. Murder is an aggravated form of culpable homicide. The existence of one of the four conditions turns culpable homicide into murder while the special exception reduce the offence of murder again to culpable homicide not amounting to murder.
20. Clause (c) of Section 299 and clause (4) of Section 300 both requires knowledge of the probability of the act causing death. Clause (4) is not intended to apply to cases in which a person intends to inflict in injury likely to cause death because the section speaks of knowledge and not intention.
21. For convenience, Clause (4) of Section 300 IPC is reproduced hereinbelow:-
'If the person committing the act knows that it is so imminently dangerous that it must, it all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.'
22. In judging of knowledge had by the accused, we must consider the circumstances; the blow that to one person, on under ordinary circumstances, may not, in the ordinary course of nature, be likely to cause death, may yet be imminently dangerous to another, or under special circumstances.
23. For convenience, Exception 4 of Section 300 IPC is reproduced hereinbelow:-
'Exception 4. - Culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of a passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation - It is immaterial in such cases which party offers the provocation or commits the first assault.'
24.. To invoke this Exception, four requisites must be satisfied, namely,
(i) it was a sudden fight;
(ii) there was no premeditation;
(iii) the act was committed in a heat of passion; and
(iv) the assailant had not taken any undue advantage or acted in a cruel manner.
25. Thus, the position in respect of offences under Sections 302, 304 Part-I and 304 Part-II IPC may be summarised as follows :-
1. That if the act of the accused is covered by Clauses First, Second and Third of Section 300 IPC, then it would amount to culpable homicide amounting to murder punishable under Section 302 IPC.
2. That if the act of the accused is covered by any of the Exceptions (Five Exceptions) of Section 300 IPC, then it would amount to culpable homicide not amounting to murder punishable under Section 304 Part-I IPC.
3. That if the act of the accused is covered by Clause (4) of Section 300 IPC, then it would amount to culpable homicide not amounting to murder punishable under Section 304 Part-II IPC.
26. Keeping the above legal position in mind, the facts of the present case are being examined.
27. It may be stated here that when the element of intention is missing and there is knowledge, in such case, the injuries inflicted would be covered by Clause (4) of Section 300 IPC and thus, would fall under Part II of Section 304 IPC. So, where the accused had knowledge, but no intention that such blow was likely to result in death, it would be held that the offence committed would be culpable homicide not amounting to murder punishable under Part II of Section 304 IPC.
28. It may be clarified here that before making conviction under Section 304 Part I PIC, act of the accused has to be covered in any one of the exceptions made in Section 300 IPC. In the present case, the learned Sessions Judge has not found any exception proved and furthermore he has clearly stated that incident did not take place on the spur of moment, therefore, Exception (4) of Section 300 IPC was also not attracted.
29. In the present case, when the findings of the learned Sessions Judge show that element of intention was missing and knowledge was there, in these circumstances, the act of the accused appellant would be covered by clause (4) of Section 300 IPC and thus, the accused appellant should have been convicted under Section 304 Part II IPC instead of 304 Part-I IPC and thus, the findings of the learned Sessions Judge convicting the accused appellant under Section 304 Part-I IPC cannot be sustained and they are liable to be altered to the extent that accused appellant is liable to be convicted under Section 304 Part-II instead of 304 Part-I.
30. For the reasons stated above, the accused appellant is liable to be convicted under Section 304 Part II instead of 304 Part I as held by the learned Sessions Judge. Thus, accused appellant has committed offence of culpable homicide not amounting to murder punishable under Section 304 Part II IPC.
31. Looking to the fact that deceased gave a lathi blow on the head of the deceased, as a result of which, she died on the same day and from the statement of PW-7 Jadav, it is also very much clear that the accused appellant further beat deceased and this fact is evident from the post mortem report Ex.P/2, which shows other injuries also, in these circumstances, it cannot be said that the act of the accused appellant would fall under Section 325 IPC. Hence, the argument No.2 is also rejected.
On point of sentence
32. Looking to the entire facts and circumstances of the case, for the offence under Section 304 Part-II IPC, if the accused appellant is sentenced to five years Rigorous Imprisonment in place of seven years RI and to pay a fine of Rs.1000/-, in default of payment of fine to further undergo six months RI, it would meet the ends of justice.
In the result, the appeal filed by the accused appellant Harla@Harlal is partly allowed in the manner that he is convicted for the offence under Section 304 Part-II IPC instead of 304 Part-I IPC and for the offence under Section 304 Part IPC, he is sentenced to undergo five years Rigorous Imprisonment and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo six months RI. The judgment and order dated 17.12.1987 passed by the learned Sessions Judge, Bhilwara stand modified accordingly.
Since the accused appellant is on bail, he shall surrender before the trial court for serving out the remaining period of sentence.