GAUTAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) IN this criminal appeal, the accused appellant Gautam S/o Kalu is challenging the judgment dated 30.08.2003 passed by the Additional Sessions Judge cum Special Judge, SC/ST Cases, Pratapgarh in Sessions Case No. 64/1998, whereby the accused appellant was convicted for committing offence under Section 302 IPC and awarded the sentence of Life Imprisonment with fine of Rs. 5000/ - and in default of payment of fine to further undergo six months simple imprisonment.

(2.) AS per the facts of the case, on 27.06.1998, SHO Suhagpura received a report by complainant Gopal, in which it was stated that at about 6 a.m. when he was at his house alongwith his younger brother Bhaira. His brother Bhaira went to the nearby handpump, where accused Gautam S/o Kalu living adjacent to the handpump called him and thereafter accused Gautam and Bheriya went together to Gautam's house. After some time the complainant heard the noise of his brother. At that time he alongwith Mangalia, Mohan and Hindura reached to the house of Gautam and saw that Gautam had tied his brother Bheriya to a wooden pillar in his courtyard using a nylon rope and was beating him with lathi. When they saw the incident, they intervened, on which Gautam ran away from the place of occurrence. Due to the beating, Bheriya became unconscious and they took him to the hospital where he died, therefore, they took Bheriya's body to Gautam's house.

(3.) LEARNED Counsel for the appellant while challenging the validity of the said judgment vehemently argued that the prosecution has concocted a false story for making allegation against the accused appellant for committing the offence under Section 302 IPC. In fact, no offence under Section 302 IPC has been committed by the accused appellant. While inviting attention of this Court towards the statement of the accused appellant recorded under Section 313 CrPC, it is submitted that the accused appellant is not challenging the incident, but gave reason for the incident in the statement recorded under Section 313 CrPC. In his defence, it is stated by the accused appellant that the deceased Bheriya had entered in his house with ill intention to commit rape with his wife. Admittedly the incident took place in the house of the accused appellant, therefore, this fact alone clearly reveals that the deceased entered in the house of the appellant with bad intention. As per the learned Counsel for the appellant, there was no previous enmity between the accused appellant and the deceased. The incident took place all of a sudden because the deceased entered in the house of the accused appellant for the purpose of committing the offence of rape and to outrage the modesty of his wife, therefore, it is obvious that a prudent man cannot tolerate such type of conduct of any person in his house, for this reason, the deceased was assaulted by the accused appellant. The story which is narrated by the prosecution witnesses, namely, P.W.2 Gopal, P.W.3 Mohan, P.W.4 Mangalia, P.W.5 Hindura is totally a concocted one because none of the independent witness has corroborated their version and the father of the deceased P.W.6 Rukma in his statement corroborated the statement of the accused appellant recorded under Section 313 CrPC and in the cross -examination, P.W.6 Rukma has specifically stated that when he reached at the place of occurrence, he saw that there were no cloths on the body of the deceased Bheriya and his body was lying upon the cot in the house of the accused appellant, meaning thereby the fact of not wearing any cloths by the deceased Bheriya is found to be correct and It is obvious that the accused appellant has rightly disclosed the correct incident in the statement recorded under Section 313 CrPC. Learned Counsel for the appellant has vehemently argued that the accused appellant is not disputing the incident, but gave his explanation for the occurrence which took place, therefore, the learned trial court has committed an error while convicting the accused appellant for the offence under Section 302 IPC and even if the prosecution story is accepted, then on the basis of the material evidence on record, it is obvious that the prosecution has not proved its case that the accused appellant has committed offence under Section 302 IPC. Learned Counsel for the appellant vehemently argued that even if the evidence led by the prosecution is considered, then also no offence under Section 304 Part I IPC is made out because the occurrence took place all of a sudden and the prosecution has failed to prove that there was any intention or motive or preparation before occurrence took place, in this view of the matter, the learned trial court has committed a grave error while convicting the accused appellant for the offence under Section 302 IPC because as per the evidence, the case does not travel beyond Section 304 Part I IPC instead of Section 302 IPC. While attacking upon the evidence of the prosecution witnesses P.W.2 Gopal, P.W.3 Mohan, P.W.4 Mangalia and P.W.5 Hindura, it is submitted that upon perusal of the statement of the aforesaid witnesses it reveals that these so -called eye -witnesses reached upon the place of occurrence after the incident, therefore, they cannot be termed as eye -witnesses. P.W.6 Rukma, father of the deceased, states that he was informed by his wife P.W. 11 Moti, on which he collected the villagers and reached the house of Gautam. This witness does not mention the presence of P.W.2 to P.W.5 at the place of occurrence, but admitted the presence of Nathu and P.W.7 Rajin. He further admitted in the statement that the deceased Bheriya was wearing only undergarments when he saw him. Likewise, P.W. 11 Moti and P.W.15 Kuiya stated before the court that the deceased was wearing only undergarments and P.W.16 Kalu stated a new story that Mangudi, the daughter of the accused, raised the shout that the accused was assaulting her mother and the deceased inside the house. In this view of the matter, it is vehemently argued by the learned Counsel for the appellant that the prosecution has suppressed the true facts regarding the genesis of the occurrence and in view of the admissions of P.W.6 to 15 regarding the absence of cloths on the body of the deceased and the fact that the incident took place inside the house of the appellant, it emerges that the deceased had entered the house of the appellant with ill intention and due to this reason the occurrence took place, therefore, even if the prosecution version is taken into account, then also the case cannot travel beyond the offence under Section 304 Part I and since the appellant is behind the bars for last more than eight and half years, therefore, it is prayed that the sentence awarded to the accused appellant is required to be altered from Section 302 IPC to Section 304 Part I IPC and he is entitled to be released upon the sentence already undergone by him.