Narain v. State of Rajasthan — 1984 DIGILAW 307 (RAJ)

V.S. DAVE, J.—This judgment disposes D.B. Criminal Appeal No. 410 of 1975, Narain & Ors. vs. State and D.B. Cr. (Jail) Appeal No. 458 of 1975, Hanuman & Ors. vs. State. Both the appeals are directed against the judgment of Additional Sessions Judge, Sikar, dated May 23, 1975; whereby he convicted and sentenced the accused-appellants as under :— 1. All the accused were convicted and sentenced to three years rigorous imprisonment for offence punishable under section 148 IPC. 2. All the accused were convicted and sentenced to imprisonment for life for offence punishable under sec. 302 read with sec. 149 IPC and a fine of Rs. 101/- and in default of payment of fine to further suffer rigorous imprisonment for three months each. 3. Accused Arjun, Hardeva, Hanuman and Govinda were convicted and sentenced to five years rigorous imprisonment for offence punishable under section 307 IPC. Accused Narain, Jessa and Laxman were convicted and sentenced to five years rigorous imprisonment for offence punishable under section 307/149 IPC. Substantive sentences were ordered to run concurrently. 4. It was also ordered that all the accused shall be entitled to the benefit under section 428 Cr.P.C. 1973. 2. Briefly the prosecution story is that on April 28,1974, Murli PW 1 lodged a written report at police station, Srimadhopur wherein he stated that they have a pump fitted on their well and have entered into an agreement with accused Hanuman, Lichman and Govinda that the latter can irrigate their field by the water from this well but the condition would be that they will have to part with half the crop produced. After cultivating the field when the crop was harvested and lying in the field on April 28, 1974, at 9 p.m. the above-named three accused were found removing two bags of barley on camel back. His brothers Heera, Moti and Sheoram saw the accused removing the barley hence they waylaid the accused. These accused started abusing his brother and threatened them to give way else they would be done to death. When this altercation was going on accused Jessa s/o Dhanna, Hardeva, Narain and Arjun armed with lathies and rapans reached there and joined Hanuman, Lichman and Govinda. Thereafter it was alleged that all the accused started beating Moti, Sheoram and Heera. If was further alleged that Moti sustained seven injuries and started vomiting blood. He was admitted to Hospital at Srimadhopur. Thereafter it was alleged that all the accused started beating Moti, Sheoram and Heera. If was further alleged that Moti sustained seven injuries and started vomiting blood. He was admitted to Hospital at Srimadhopur. Jhuntha, Pokhar, Ballu and several other persons collected at the place of occurrence and they intervened to bring the incident to a close. On receipt of the aforesaid written report Ex. P. 1 a case was registered against the accused persons for offences under sections 147, 323, 382/379 & 307 IPC while the patient was getting treatment in hospital, he succumbed to the injuries at 4.45 a.m. on April 29, 1974. An information to this effect was sent to the police and the case was converted into one under section 302 IPC. during the course of investigation authopsy of the corpse was conducted by Dr.B.P. Jangid (PW 7) who found the following external and internal injuries on the person of the deceased; 1. Stitched wound 2, 1/4" long on the middle line of the scalp in the anterior part. 2. Diffused swelling 2" x 1/4" above the right eye. 3. Abrasion 3/4 x 1/2" on the back of right forearm in middle. 4. Contusion 2" x 2" on the lateral side of right upper arm in middle. 5. Contusion 2-1/2 x 1/4" on the lateral side of right upper arm in the upper l/3rd. 6. Abrasion 2" x 1" on the left shoulder posteriorly. 7. Diffused swelling on both the parietal temporal regions. There was a haemotoma on both the parieto-temporal regions. There was fracture of both the parietal bones, the fracture line on left parietal bone was going to the temporal bone and left side of the base of skull. The membrance of the brain and the brain were conjested. There was subdural and extra dural haemorrhage. Dr. Jangid opined that injury No. 1 was responsible for the death of Moti. 3. Dr. Jeetendra Kumar PW 11 examined Shri Heera and Shivram for injuries sustained by them and found five simple injuries on the person each of them which were caused by blunt object. After completing investigation the investigating officer submitted challan against seven persons in the court of Addl. Judicial Magistrate, Neem-ka-thana who in turn committed them to the court of Sessions for trail. 4. After completing investigation the investigating officer submitted challan against seven persons in the court of Addl. Judicial Magistrate, Neem-ka-thana who in turn committed them to the court of Sessions for trail. 4. The accused persons faced trial for the offences under sections 147, 148, 302, 307 and 382 IPC, as they denied the charges read over and explained to them. At trial prosecution examined 23 witnesses in the support of the case. 5. Accused denied the occurrence as alleged by the prosecution and examined only DW 1 Dr. Ramakant Purohit who stated that on April 28, 1974 he examined Hanuman and Govindram & found 5th & 2nd injuries on their person respectively which were caused by blunt object and were simple in nature. 6. After weighing the evidence on record the learned Judge acquitted all the accused of the offence under section 382 IPC but convicted and sentenced them as indicated above. 7. We need not discuss the evidence in detail as the learned counsel for the appellant does not assail the evidence of occurrence. He has frankly stated that on evidence on record he cannot argue a case of acquittal for all the persons. He submits that the case of Narain is distinguishable from that of other accused persons as all the eye - witnesses including injured eye - witness have stated that Narain was armed with a rapan (which is a sharp cutting instrument) and he inflicted injury on deceased Moti by it. The prosecution has not proved it from the evidence of Dr. Jangid that there was any injury by sharp cutting instrument and hence it is vehemently argued that his participation in the crime is not at all established. Regarding other accused appellants it is submitted that the prosecution has failed to establish that accused appellants formed any unlawful assembly, the common object of which was to cause the death of Moti. On the contrary it is submitted that the presence of single fatal blow on the person of deceased indicates that the appellants had no intention to kill Moti also. There were no intervening circumstances to restrain them from inflicting more severe injuries so that he would have died on the spot. It is also argued that the appellants have been acquitted of the offence under section 382 IPC and hence the genesis of the prosecution story has been held to be false. There were no intervening circumstances to restrain them from inflicting more severe injuries so that he would have died on the spot. It is also argued that the appellants have been acquitted of the offence under section 382 IPC and hence the genesis of the prosecution story has been held to be false. Learned counsel also submitted that the injuries on the person of Hanuman and Govinda have not been explained and hence in the circumstances of this case even if the entire story of the prosecution is relied upon the main offence does not travel beyond section 325 read with section 149 IPC and since the six accused have already remained in jail for more than 4 years their sentences should be reduced to already undergone. Regarding the sentence of Jessa is concerned, it is submitted that he has remained in jail for more than 2 years and he being an old man of more than 80 years he too be released on sentence already undergone. 8. The learned Public Prosecutor could not support the judgment of Additional Sessions Judge to the extent of conviction recorded by him for offence under section 302 IPC. He however, submitted that case falls within the scope of exception four to section 300 IPC and conviction can be altered into one under section 304 (1) IPC. 9. We have given our thoughtful consideration to the rival contentions and have perused the entire record. 10. It is admitted case of the prosecution that incident started because three of the accused were found removing two bags of barley. The complainant party asked them to divide and hand over their share first and on refusal to do so by the accused the beating took place. It is also born out from the record that the complainant party was also armed and inflicted injuries on two of the accused which have not been explained. A close scrutiny of post mortem report shows that total number of injuries inflicted on the person of deceased are not more than five out of which four are simple and only one is fatal. It is also not born out from the record that any other member of the complainant party also sustained even one grievous injury. A close scrutiny of post mortem report shows that total number of injuries inflicted on the person of deceased are not more than five out of which four are simple and only one is fatal. It is also not born out from the record that any other member of the complainant party also sustained even one grievous injury. These all factors go to indicate that while three of accused Govinda, Lichman and Hanuman were carrying away the complainants share of produce they were told not to do so and there was an altercation between both the parties at that stage. Four more accused came on the spot armed with lathies and they all belaboured the complainant party. It was on the spur of moment that they formed an unlawful assembly the common object of which was to cause such bodily injuries which were likely to cause death. In these circumstances we hold that the accused persons did form an unlawful assembly, and one of its members caused such bodily injury on the person of Moti which resulted into his death. Hence all of them are guilty of offence punishable under section 304 part II IPC read with section 149 IPC. 11. Regarding the participation of Narain, it is true that Dr. Jangid has not said that injury No. 1 was caused by sharp cutting instrument like rapan but at the same time this injury had been stitched prior to the death of Moti by some other Doctor who has not been examined. Dr. Jangid has said that injuries No 2 to 6 are caused by blunt object but neither the public prosecutor nor the defence counsel asked him as to by what nature of weapon injury No. 1 could be caused. It was in these circumstances that Narain could not be held responsible for injury No 1 which is fatal in nature and was saved for his individual act but it cannot be said for a moment that he was not a member of an unlawful assembly. His presence with a weapon of offence on the spot is established beyond any shadow of doubt and we hold that he too was member of an unlawful assembly and guilty of offence under section 304 part II IPC read with section 149 IPC. 12. His presence with a weapon of offence on the spot is established beyond any shadow of doubt and we hold that he too was member of an unlawful assembly and guilty of offence under section 304 part II IPC read with section 149 IPC. 12. Regarding causing injuries on the person of Heera and Sheoram, we find that all the injuries are simple in nature and were caused by blunt weapon and neither individually nor collectively could have resulted in death of Heera and Sheoram and the circumstances also do not indicate that any of the accused showed the common object of inflicting such injuries, hence accused Arjun, Hardeva, Hanuman and Govinda can be individually held guilty for offence under section 323 IPC. We also do not find any justification in maintaining conviction under section 148 IPC specially when no deadly weapon has been used in the whole occurrence and also that unlawful assembly was formed on the spot itself at the spur of the moment. Hence all the accused are acquitted of offence under section 148 IPC and their conviction and sentence on this score is set aside. 13. We, therefore, set aside the conviction of all the accused for offence under section 302 read with section 149 IPC and instead convict them for offence under section 304 part II read with section 149 IPC. 14. For determining the quantum of sentences we have perused the record of this court as well as that of trial court and found that each of the six accused viz. Arjun, Hardeva, Hanuman, Narain, Laxman and Govinda has remained in custody for a period over four years before their sentences were suspended by this Court. The occurrence is alleged to have taken place in 1974 and it is over a decade that accused have been facing criminal proceedings and no useful purpose will be served in sending the accused to jail particularly in the circumstances that a sudden quarrel had taken place between the patties. Regarding accused Jessa, he was examined by the trial court on February 17, 1975 and he stated his age to be 70 years. The court also assessed it to be between 65 to 70 years. Regarding accused Jessa, he was examined by the trial court on February 17, 1975 and he stated his age to be 70 years. The court also assessed it to be between 65 to 70 years. It is past 9 years since then and he has attained the age of eighty, he has already remained in custody for over two years and in these circumstances his sentence is also reduced to the period already undergone. 15. In the result, the appeals are partly allowed. All the accused are acquitted of the offence under section 302 read with sec. 149 IPC instead they are convicted for offence under section 304 Part II IPC and their substantive sentences are reduced from imprisonment for life to that already undergone. The sentence of fine is maintained. They are given two months time to deposit the fine, failing which they would suffer the imprisonment awarded in default of payment of fine. 16. The conviction of accused Arjun, Hardeva, Hanuman and Govinda under section 307 IPC is set aside, they are instead held guilty of offence under section 323 IPC. In view of the fact that we have reduced the sentences of all the accused to one already undergone no separate sentence remains to be recorded on this count. 17. The conviction and sentence of Narain, Jessa and Laxman for offence under section 307/149 IPC is set aside and they are acquitted of this charge. 18. All the accused are also acquitted of the offence under section 148 I.P.C. and their conviction and sentence on this count is also set aside. 19. All the accused are on bail and they need not surrender. Their bail bonds shall stand discharged.