Radhey Shyam Vs. State of Rajasthan - Court Judgment

SooperKanoon Citationsooperkanoon.com/759581
SubjectCriminal
CourtRajasthan High Court
Decided OnJul-30-1996
Case NumberS.B. Cr. Appeal No. 300 of 1995
Judge S.C. Mittal, J.
Reported in1997CriLJ3; 1995(2)WLC459; 1996(1)WLN543
ActsIndian Penal Code (IPC), 1860 - Sections 299, 300, 302 and 304(I)
AppellantRadhey Shyam
RespondentState of Rajasthan
Appellant Advocate Doongar Singh, Adv.
Respondent Advocate JPS Chaudhary, Public Prosecutor and; HSS Kharlia, Adv.
Cases ReferredSubramanian and Ors. v. State of Kerala
Excerpt:
penal code - section 304 part 1/304 part ii--deceased & accusedfriends taking liquor--quarrel over trivial matter to keep candle burning--no premeditation no preplanning--simple injuries on head & thigh--no intention to cause death--held, case is covered by section 304 part ii and not section 304 part-i.;the deceased and the appellant were friends and they were taking liquor alongwith other persons. suddenly a quarrel arose between them over a trivial matter to keep the candle burning or to put out.;there was no premeditation or pre-planning on the part of the appellant to inflict the injury to the deceased. the injury on the vital part i.e. head was simple injury and on non vital part i.e. thigh happened to be of the nature sufficient in the ordinary course to cause death.;the accused had no intention to cause death. he has also no intention of causing such bodily injury as was likely to cause death.;the injury was likely to cause death and the case is covered under section 304 part ii and not under section 304 part i.;appeal partly allowed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - 5. learned public prosecutor as well as learned counsel for the complainant have argued that the appellant had the intention of causing such bodily injury as was likely to cause death.s.c. mittal, j.1. this appeal arises out of the judgment of conviction and sentence dt. 27-6-95 passed by learned addl. sessions judge, hanumangarh whereby the appellant on conviction under section 304(1) has been sentenced to undergo 10 years r.i. and rs. 500/- fine or in default to suffer one month r.i.2. the brief facts leading upto this appeal are that on 21 -2-94 the appellant and ranveersingh, hannelsingh, jaswanlsingh, vinod nai, krishna kumar ramuram and raju mcghwal were taking liquor al 10.30 p.m. on the occasion of the marriage of biharilal's daughter. a candle lamp was burning there and the appellant and krishnakumar quarrelled over the candle to keep it lit or off. the appellant inflicted injuries to krishna kumar by knife on left parictals bone upper border, middle of left thumb and left thigh, when harmelsingh tried to rescue, he also got injured on right forearm. krishna kumar was immediately taken to the hospital at hanumangarh town but he died of the injuries. after usual investigation a challan was filed against the appellant under section 302 i.p.c. the appellant denied the charge under section 302 i.p.c. and the trial proceeded against him resulting in the conviction and sentence as stated above.3. learned counsel for the appellant has not argued on the factum of the case. i have also perused the impugned judgment and statements of jaju ram pw-1, harmelsingh pw-2 and renveer singh pw-3 eye witnesses to the occurrence. i have also gone through the cross examination made from the above witnesses and i agree with the appreciation of the evidence made by learned trial court that the prosecution has proved beyond reasonable doubt that the appellant inflicted injuries as stated above by sharp edged knife. krishna kumar died as a result of the injuries on left thigh which was opined by pw-6 dr. bhandurshing, medical jurist that it was sufficient in the ordinary course of nature to cause death. he has stated that krishna kumar died due to injuries on femoral vein leading to haemorrhage and shock. learned trial court arrived at the conclusion that it is not established that the appellant inflicted injuries with an intention to cause death or to cause such bodily injury as he knew to be likely to cause death or such injury as is sufficient in the ordinary course of nature to cause death or knowing that injury is imminently dangerous that would in all probability cause death or is likely to cause death. according to the learned trial court the act of the accused was not covered under section 300 i.p.c. but under section 304 (i) i.p.c. that he inflicted the injury with the intention of causing such bodily injury as is likely to cause death. it has been further held by the learned trial court that the. intention of the appellant was not of causing death of krishna kumar.4. learned counsel for the appellant has strenously argued that the act of the accused is not covered under section 304 part i of i.p.c. because the intention of the accused was not to cause such bodily injury which was likely to cause death. at the most it could be said that he inflicted injury with the knowledge that it was likely to cause death but without any intention to cause death or to cause such bodily injury to cause death as laid down in section 304 part 1 of i.p.c. it is contended by the counsel for the appellant that the appellant and the deceased were friends and taking liquor on the occasion of marriage of biharilal's daughter. there was no previous enirnity between them. suddenly they quarrelled over a petty matter and altercation took place and in a spur of moment the appellant inflicted an injury on the thigh which is non vital part of the body. injury no. 1 on left parietal bone 1/2' x 1/8' x bone deep is a simple injury. the appellant did not give any blow on the vital part of the body, death occurred unfortunately due to a cut of femoral vein which accused could not intend or even had the knowledge that by inflicting injury on thigh the femoral vein would be cut. the cause of death was haemorrhage resulting in shock but dr. rhandijr singh pw-6 has given opinion in cross examination that if proper treatment would have been given and bleeding would have been stopped, the patient could be saved.5. learned public prosecutor as well as learned counsel for the complainant have argued that the appellant had the intention of causing such bodily injury as was likely to cause death. he was having knife with him whereas there was no occasion for him for this. he caused injury on head which is a vilal pan of the body and then repeatedly gave blow on thigh which cut femoral vein leading to direct result of haemorrhage and shock. femoral vein lakes blood to the heart for purification. therefore the second injury on thigh was also on vital part. thus, learned public prosecutor and the learned counsel for the complainant have supported the conviction and sentence.6. i have given my serious consideration to rival contentions. i have also perused the statements of eye witnesses and also the statements of dr. bahadur singh pw 6. learned counsel for the appellant has taken support from several decisions:1. in 1981 scc (cr) 731 : 1981 cri lj 1033 (sc)(gokul parasram patil v. stale of maharashtra), a single knife blow was inflicted above left clavicle, a non vital part, which caused muscle-deep incised injury and also culling superior venagaya. the injury was found sufficient in the ordinary course of nature to cause death but in the facts of the case it was found inflicted non-intentional and cutting of venacava was accidental circumstance. intention aspect of the case was not established and the accused was convicted under section 304 i pc part ii instead of 302 ipc and sentenced to five years r.i.2. similarly, in the above book at page 826 in kulwant rai v. stale of punjab it was held that third part of the section 300 ipc could not apply in a hit and run case where it cannot be held that the accused had any intention to inflict fatal injury and the case fell under section 304 ii and the accused was sentenced to 5 years r.i.3. in randhirsingh dhire v. state of punjab in the above book on 856, a single head injury was inflicted by a student, weapon supplied by his father, in the spur of moment in which deceased expired after six days. intention to inflict fatal injury was not inferred in the facts and circumstances of the case and the accused was held guilty of offence under section 304 part ii to suffer five years r.i.4. in 1983 scc (cr)459 : 1983 cri lj 852(sc) (jagtar singh v. state of punjab), a single knife injury was on chest sufficient in the ordinary course of nature to cause death. but it was caused in a spur of moment, to some extent on deceased's provocation, in a sudden and chance quarrel on trivial issue. there was no case of premeditation or malice on the part of the accused. the accused was convicted under section 304 part ii and sentenced to five years r.i.5. in air 1956 mb 207 : 1956 cri lj 1078 (nanbu v. the state), the accused shot an arrow in the thigh of the victim cutting femoral artery resulting in death on account of profuse bleeding. there were no circumstances to show the intention to cause death or to cause bodily injury sufficient in the ordinary course of nature to cause death. the cutting of femoral artery was an accident and it could not be attributed that the intention of the accused was to cut the femoral vein. he had no knowledge that such injury was likely to cause death. hence he was convicted under section 304 part ii and awarded 4 years r.i.6. in 1989 cr lr (raj) 394 (ramnivas v. the state), verbal altercation took place between the parties having shops opposite each other and on sudden provocation accused gave two axe blows. the case fell under section 304 pail ii in the facts and circumstances of the case and the accused was awarded to undergo sentence of 7 years r.i. 7. in 1985 rcc 225 (nathu v. state of rajasthan), the accused committed the act without pre-meditation in a sudden fight and in a heat of passion. in the facts of the case, it could not be said that the acccused took undue advantage or acted in cruel and unusual manner. the conviction under section 302. ipc was set aside and was convicted under section 304 part i and sentenced to 7 years r. i. and a fine of rs. 2.000/- or in default of payment of fine to undergo 6 months r.i.8. in 1986 wln (uc) 239 (raj) (ganesh giri v. state of rajasthan), the accused had no intention to kill the deceased while giving two jatroo blows. the accused was brought up by deceased from childhood. he acted with knowledge that injuries were likely to cause death and therefore he was convicted under section 304 part ii and sentenced to 5 years r.i.9. in 1986 rlw 240 (danaram v. state of rajasthan), there was no enmity between the deceased and the accused. there was no premeditation or pre-planning. the accused gave two blows on head by blunt weapon which caused death. it was held that the accused did not have the intention to cause death or to cause injury sufficient in the ordinary course of nature to cause death. the case fell within section 299 ipc and punishable under section 304 part i and the accused was convicted for a period of 7 years r.i. and a fine of rs. 2,000/-.7. in the case in hand, the important fact and circumstance are that the deceased and the appellant were friends and they were taking liquor alongwith other persons. suddenly a quarrel arose between them over a trivial mailer to keep the candle burning or to put out. it has also come on the record that they exchanged words and altercation ensued and during this altercation the appellant inflicted simple injury by knife on the head and second injury on the thigh which has accidentally cut the femoral artery leading to profuse bleeding and deceased died due to shock. there was no premeditation or pre-planning on the part of the appellant to inflict the injury to the deceased. the injury on the vital part i.e. head was simple injury and on non vital part i.e. thigh happened to be of the nature sufficient in the ordinary course to cause death. there was scuffle and a little provocation from the deceased. in the above circumstance, i agree with the learned counsel for' the appellant that the accused had no intention to cause death. he had also no intention of causing such bodily injury as was likely to cause death. the injury on the thigh which proved fatal due to femoral artery cut was without any intention on the part of the accused. therefore in the facts and circumstances of this case and after considering the above cases cited before me, an intention to cause such bodily injury as was likely to cause death could not be attributed to the appellant. it could be said that the act was done by him with the knowledge that the injury was likely to cause death and the case is covered under section 304 part ii and not under section 304 part i. learned counsel for the complainant has relied upon 1993 cr lj 1387 : 1993 air scw 1014 (sc) (subran @ subramanian and ors. v. state of kerala) but this case is distinguishable on facts and is not applicable in the facts and circumstances of the case in hand. in the above referred case looking to the weapon with which the accused was armed and the nature, number and set of injury inflicted by him it was attributed to him that he had the knowledge that those injuries were likely to cause death and there were no other circumstances and the act was committed without any excuse.8. in view of the above discussion, i do not agree with the learned trial court and i hold that the conviction under section 304 part i should be set aside and the appellant should be convicted under section 304 part ii.9. in the result, the appeal is partly accepted. the appellant radheyshyam is acquitted of the offence under section 304 part iipc but he is convicted under section 304 part ii ipc. he is hereby sentenced to undergo 5 years r.i. and to pay a fine of rs. 20,000/- or in default to undergo six months r.i. the compensation of rs. 20,000/- out of the fine shall be given to the wife of the deceased. the trial court shall take steps for the payment of the fine.
Judgment:

S.C. Mittal, J.

1. This appeal arises out of the judgment of conviction and sentence dt. 27-6-95 passed by learned Addl. Sessions Judge, Hanumangarh whereby the appellant on conviction under Section 304(1) has been sentenced to undergo 10 years R.I. and Rs. 500/- fine or in default to suffer one month R.I.

2. The brief facts leading upto this appeal are that on 21 -2-94 the appellant and Ranveersingh, Hannelsingh, Jaswanlsingh, Vinod Nai, Krishna Kumar Ramuram and Raju Mcghwal were taking liquor al 10.30 p.m. on the occasion of the marriage of Biharilal's daughter. A candle lamp was burning there and the appellant and Krishnakumar quarrelled over the candle to keep it lit or off. The appellant inflicted injuries to Krishna Kumar by knife on left parictals bone upper border, middle of left thumb and left thigh, when Harmelsingh tried to rescue, he also got injured on right forearm. Krishna Kumar was immediately taken to the hospital at Hanumangarh Town but he died of the injuries. After usual investigation a challan was filed against the appellant under Section 302 I.P.C. The appellant denied the charge Under Section 302 I.P.C. and the trial proceeded against him resulting in the conviction and sentence as stated above.

3. Learned counsel for the appellant has not argued on the factum of the case. I have also perused the impugned judgment and statements of Jaju Ram PW-1, Harmelsingh PW-2 and Renveer Singh PW-3 eye witnesses to the occurrence. I have also gone through the cross examination made from the above witnesses and I agree with the appreciation of the evidence made by learned trial Court that the prosecution has proved beyond reasonable doubt that the appellant inflicted injuries as stated above by sharp edged knife. Krishna Kumar died as a result of the injuries on left thigh which was opined by PW-6 Dr. Bhandurshing, Medical Jurist that it was sufficient in the ordinary course of nature to cause death. He has stated that Krishna Kumar died due to injuries on femoral vein leading to haemorrhage and shock. Learned trial Court arrived at the conclusion that it is not established that the appellant inflicted injuries with an intention to cause death or to cause such bodily injury as he knew to be likely to cause death or such injury as is sufficient in the ordinary course of nature to cause death or knowing that injury is imminently dangerous that would in all probability cause death or is likely to cause death. According to the learned trial Court the act of the accused was not covered under Section 300 I.P.C. but under Section 304 (I) I.P.C. that he inflicted the injury with the intention of causing such bodily injury as is likely to cause death. It has been further held by the learned trial Court that the. intention of the appellant was not of causing death of Krishna Kumar.

4. Learned counsel for the appellant has strenously argued that the act of the accused is not covered under Section 304 part I of I.P.C. because the intention of the accused was not to cause such bodily injury which was likely to cause death. At the most it could be said that he inflicted injury with the knowledge that it was likely to cause death but without any intention to cause death or to cause such bodily injury to cause death as laid down in Section 304 part 1 of I.P.C. It is contended by the counsel for the appellant that the appellant and the deceased were friends and taking liquor on the occasion of marriage of Biharilal's daughter. There was no previous enirnity between them. Suddenly they quarrelled over a petty matter and altercation took place and in a spur of moment the appellant inflicted an injury on the thigh which is non vital part of the body. Injury No. 1 on left parietal bone 1/2' x 1/8' x Bone Deep is a simple injury. The appellant did not give any blow on the vital part of the body, death occurred unfortunately due to a cut of femoral vein which accused could not intend or even had the knowledge that by inflicting injury on thigh the femoral vein would be cut. The cause of death was haemorrhage resulting in shock but Dr. Rhandijr Singh PW-6 has given opinion in cross examination that if proper treatment would have been given and bleeding would have been stopped, the patient could be saved.

5. Learned Public Prosecutor as well as learned counsel for the complainant have argued that the appellant had the intention of causing such bodily injury as was likely to cause death. He was having knife with him whereas there was no occasion for him for this. He caused injury on head which is a vilal pan of the body and then repeatedly gave blow on thigh which cut femoral vein leading to direct result of haemorrhage and shock. Femoral vein lakes blood to the heart for purification. Therefore the second injury on thigh was also on vital part. Thus, learned Public Prosecutor and the learned counsel for the complainant have supported the conviction and sentence.

6. I have given my serious consideration to rival contentions. I have also perused the statements of eye witnesses and also the statements of Dr. Bahadur Singh PW 6. Learned counsel for the appellant has taken support from several decisions:

1. In 1981 SCC (Cr) 731 : 1981 Cri LJ 1033 (SC)(Gokul Parasram Patil v. Stale of Maharashtra), a single knife blow was inflicted above left clavicle, a non vital part, which caused muscle-deep incised injury and also culling superior venagaya. The injury was found sufficient in the ordinary course of nature to cause death but in the facts of the case it was found inflicted non-intentional and cutting of venacava was accidental circumstance. Intention aspect of the case was not established and the accused was convicted under section 304 I PC part II instead of 302 IPC and sentenced to five years R.I.

2. Similarly, in the above book at page 826 in Kulwant Rai v. Stale of Punjab it was held that third part of the Section 300 IPC could not apply in a hit and run case where it cannot be held that the accused had any intention to inflict fatal injury and the case fell under Section 304 II and the accused was sentenced to 5 years R.I.

3. In Randhirsingh Dhire v. State of Punjab in the above book on 856, a single head injury was inflicted by a student, weapon supplied by his father, in the spur of moment in which deceased expired after six days. Intention to inflict fatal injury was not inferred in the facts and circumstances of the case and the accused was held guilty of offence Under Section 304 Part II to suffer five years R.I.

4. In 1983 SCC (Cr)459 : 1983 Cri LJ 852(SC) (Jagtar Singh v. State of Punjab), a single knife injury was on chest sufficient in the ordinary course of nature to cause death. But it was caused in a spur of moment, to some extent on deceased's provocation, in a sudden and chance quarrel on trivial issue. There was no case of premeditation or malice on the part of the accused. The accused was convicted Under Section 304 Part II and sentenced to five years R.I.

5. In AIR 1956 MB 207 : 1956 Cri LJ 1078 (Nanbu v. The State), the accused shot an arrow in the thigh of the victim cutting femoral artery resulting in death on account of profuse bleeding. There were no circumstances to show the intention to cause death or to cause bodily injury sufficient in the ordinary course of nature to cause death. The cutting of femoral artery was an accident and it could not be attributed that the intention of the accused was to cut the femoral vein. He had no knowledge that such injury was likely to cause death. Hence he was convicted under Section 304 Part II and awarded 4 years R.I.

6. In 1989 Cr LR (Raj) 394 (Ramnivas v. The State), verbal altercation took place between the parties having shops opposite each other and on sudden provocation accused gave two axe blows. The case fell under Section 304 Pail II in the facts and circumstances of the case and the accused was awarded to undergo sentence of 7 years R.I.

7. In 1985 RCC 225 (Nathu v. State of Rajasthan), the accused committed the act without pre-meditation in a sudden fight and in a heat of passion. In the facts of the case, it could not be said that the acccused took undue advantage or acted in cruel and unusual manner. The conviction Under Section 302. IPC was set aside and was convicted Under Section 304 Part I and sentenced to 7 years R. I. and a fine of Rs. 2.000/- or in default of payment of fine to undergo 6 months R.I.

8. In 1986 WLN (UC) 239 (Raj) (Ganesh Giri v. State of Rajasthan), the accused had no intention to kill the deceased while giving two Jatroo blows. The accused was brought up by deceased from childhood. He acted with knowledge that injuries were likely to cause death and therefore he was convicted Under Section 304 Part II and sentenced to 5 years R.I.

9. In 1986 RLW 240 (Danaram v. State of Rajasthan), there was no enmity between the deceased and the accused. There was no premeditation or pre-planning. The accused gave two blows on head by blunt weapon which caused death. It was held that the accused did not have the intention to cause death or to cause injury sufficient in the ordinary course of nature to cause death. The case fell within Section 299 IPC and punishable Under Section 304 Part I and the accused was convicted for a period of 7 years R.I. and a fine of Rs. 2,000/-.

7. In the case in hand, the important fact and circumstance are that the deceased and the appellant were friends and they were taking liquor alongwith other persons. Suddenly a quarrel arose between them over a trivial mailer to keep the candle burning or to put out. It has also come on the record that they exchanged words and altercation ensued and during this altercation the appellant inflicted simple injury by knife on the head and second injury on the thigh which has accidentally cut the femoral artery leading to profuse bleeding and deceased died due to shock. There was no premeditation or pre-planning on the part of the appellant to inflict the injury to the deceased. The injury on the vital part i.e. head was simple injury and on non vital part i.e. thigh happened to be of the nature sufficient in the ordinary course to cause death. There was scuffle and a little provocation from the deceased. In the above circumstance, I agree with the learned counsel for' the appellant that the accused had no intention to cause death. He had also no intention of causing such bodily injury as was likely to cause death. The injury on the thigh which proved fatal due to femoral artery cut was without any intention on the part of the accused. Therefore in the facts and circumstances of this case and after considering the above cases cited before me, an intention to cause such bodily injury as was likely to cause death could not be attributed to the appellant. It could be said that the act was done by him with the knowledge that the injury was likely to cause death and the case is covered under Section 304 Part II and not under Section 304 Part I. Learned counsel for the complainant has relied upon 1993 Cr LJ 1387 : 1993 AIR SCW 1014 (SC) (Subran @ Subramanian and Ors. v. State of Kerala) but this case is distinguishable on facts and is not applicable in the facts and circumstances of the case in hand. In the above referred case looking to the weapon with which the accused was armed and the nature, number and set of injury inflicted by him it was attributed to him that he had the knowledge that those injuries were likely to cause death and there were no other circumstances and the act was committed without any excuse.

8. In view of the above discussion, I do not agree with the learned trial court and I hold that the conviction Under Section 304 Part I should be set aside and the appellant should be convicted Under Section 304 Part II.

9. In the result, the appeal is partly accepted. The appellant Radheyshyam is acquitted of the offence Under Section 304 Part IIPC but he is convicted under Section 304 Part II IPC. He is hereby sentenced to undergo 5 years R.I. and to pay a fine of Rs. 20,000/- or in default to undergo six months R.I. The compensation of Rs. 20,000/- out of the fine shall be given to the wife of the deceased. The trial court shall take steps for the payment of the fine.