Ashok Nath @ Om Prakash vs State

Ashok Nath @ Om Prakash S/o Shri Ram Chandra Singh, by caste Rajput, resident of Bijoli, Tehsil Sulempur District Devariya (U.P.).

(At present confined in Sub Jail, Balotra)

----Appellant Versus The State of Rajasthan

----Respondent

For Appellant(s) : None present.

For Respondent(s) : Mr. Anil Joshi, PP.

HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE G.R. MOOLCHANDANI

Judgment

14/08/2019

1. This appeal is directed against the judgment dated 23rd April,

2012 passed by Additional Sessions Judge (Fast Track), Balotra,

Headquarters Barmer Camp Balotra in Sessions Case No.52/2011

titling State of Rajasthan Vs. Ashok Nath @ Om Prakash

whereby, the trial Court has convicted the accused appellant for

the offence punishable under Section 302 IPC and has sentenced

him to undergo life imprisonment with a fine of Rs.2,000/- in

default of payment of fine, further to undergo one month's

additional simple imprisonment.

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2. On the basis of Report submitted by Station Master, Jalore,

FIR No. 4/2011 was registered against the accused-appellant,

which recited that two hermits (Sadhus) were fighting with each

other in an inebriated state. One of them inflicted by a pair of

tongs (Chimta) upon the head of another Sadhu, who fell down

injured and further succumbed to his injuries.

3. Upon denial of charges, the trial Court framed charges for

the offence punishable under Section 302 IPC, prosecution

produced 13 witnesses and got 22 documents exhibited.

4. Post recording the statements of the accused-appellant

under Section 313 Cr.P.C, statements of the Police Constable

Mohan Lal have been got exhibited as exhibit D/1 in defence

evidence.

Learned counsel for the appellant has verbalized no

instructions, so with the support of learned Public Prosecutor, we

have ourselves scrutinized the material and have examined the

record carefully and scanned the order impugned.

5. Gone through the material thoroughly and scrutinized the

material available on the record and perused the Judgment

impugned.

6. Mohan Lal PW-5, GRP Constable, has narrated eye witness

account of the incident and has stated that on 17.02.2011, he was

posted at GRP Outpost, Jalore and was on beat duty at 10:20 pm.

Two Sadhus were seen fighting with each other, one of them, who

could be identified, was having heavy Chimta (tongs) in his hand,

inflicted blow thereof on the head of the other Sadhu, who

sustained injury and fell down. Blood started oozing out of the

wounds and he became unconscious. Upon hearing the ruckus,

Rasool Mohammed also came there, Ambulance was requisitioned

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by calling 108 and the injured was taken to the Government

Hospital. It has further been stated by this witness that the

Sadhu, who inflicted the blow was apprehended at the spot

alongwith his Chimta (tongs). He further alleges that the assailant

Sadhu also became unconscious subsequently, who too was taken

to the Hospital, where he was admitted. The injured Sadhu

expired at the hospital. The witness elaborated that blow of

Chimta by the accused Sadhu upon the head of injured Sadhu,

caused his death.

PW-6 Devi Singh deposed almost on identical lines as was

stated by PW-5 and has corroborated his version.

7. PW-9 Rasool Mohammed stated that on 17.02.2011 at about

10:00 pm, he was in his office. From the rear side of the office, a

noise of scuffle of two Sadhus was heard. That area is within the

railway boundary. On hearing the commotion, he and Durag Singh

went to the spot, where they found GRP Constables Mohan Lal and

Devi Singh standing. One Sadhu was lying injured and blood was

oozing out of the wound on his head and other Sadhu was

standing there with a Chimta in his hand. The witness identified

the appellant as the assailant.

These GRP Constables called 108 to requisition ambulance

and took the injured Sadhu to the Government hospital, Jalore.

The other Sadhu was taken into custody by Mohan Lal alongwith

his Chimta, which was stained with blood. He further stated that

Sadhu Ashok Nath, present in the Court was taken into custody by

GRP Constable. They later heard that the injured Sadhu had

succumbed to his injuries at the Hospital and Sadhu present in the

Court had caused death of that Sadhu. Nothing material or

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contradictory has emerged from the cross-examination of all the

witnesses.

8. PW-10 Dr. Ramesh Chand Chauhan, who conducted autopsy

on the body of the deceased Sadhu, has confirmed conducting

autopsy and has stated that following ante-mortem injuries were

found on the body of the deceased:-

(1) Multiple lacerated wounds 1x1/4", 0.x1/4", 1x0.", 0.5x0.5", 1.5x1/4"

with multiple fracture, left frontal parietal and temporal bone fractured and

intra-cranial blood present,

(2) Lacerated wound with blood 1/2"x1/4" Left ear pinna ant,

(3) Swelling 1½"x1½" at left hand and

(4) Abrasion with blood ½"x½" on right wrist

9. Testimony of all the witnesses has established the offence

proven and all the witnesses have corroborated factum of the

incident.

10. Testimony and version of the FIR does divulge that both the

Sadhus were fighting with each other in an inebriated condition

and during this scuffle, the assailant inflicted the Chimta blow on

the head of the victim without any premeditation and without

intended to cause his death. Thus, we are of the firm opinion that

the ingredients of Section 302 IPC are totally lacking, since the

death has not been caused with intention of causing death or such

a bodily injury, which the offender would have known to be likely

to cause death or with the intention to ordinarily cause death.

Thus offence perperated falls within the purview of Section 304

Part-II IPC rather than that under Section 302 IPC.

11. In the case of Surinder Kumar v. Union Territory of

Chandigarh AIR 1989 SC 1094, Supreme Court has held:- (Downloaded on 30/08/2019 at 02:09:34 AM)

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"7. To invoke this Exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) The assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly."

12. Further in the case of Arumugam v. State (2008) 15 SCC

590, at page 595 in support of the proposition of law that under

what circumstances Exception 4 to Section 300, Indian Penal

Code can be invoked, if death is caused, it has been explained as

under:

"The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and

(d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 Indian Penal Code is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall

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be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case.

For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'."

13. Further in the case of Satish Narayan Sawant v. State of

Goa (2009) (17) SCC 724, Supreme Court has held:-

"Section 300 Indian Penal Code further provides for the Exceptions which will constitute culpable homicide not amounting to murder and punishable Under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II."

14. We, find that the quarrel took place abruptly and suddenly.

The accused as well as the deceased were under the effect of

intoxication. In this scuffle, the accused inflicted blows of the

Chimta held by him on the person of the deceased without any

premeditation and without intending to cause him such injuries

which could result into his death. Accordingly, while partly allowing

the appeal, we modify the finding of the trial Court and convert

the conviction of the accused-appellant from Section 302 IPC to

Section 304 Part-II IPC.

15. As per the record, the accused-appellant was arrested on

20.02.2011 and is in custody since then. He has suffered

incarceration for a term of more than 8 years and 6 months. We

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feel that the ends of justice shall be sub-serve by sentencing the

accused-appellant to the period already undergone by him under

Section 304 Part-II IPC. However, the sentence of fine awarded

by the trial Court is maintained. The accused-appellant shall be

released from Jail upon depositing the amount of fine; failing

which, he shall be made to suffer additional sentence of one

month's imprisonment awarded by the trial Court.

16. The appeal is partly allowed in terms indicated above.

(G.R. MOOLCHANDANI),J (SANDEEP MEHTA),J 7-Mohan/-

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