CHHOTA v. STATE OF RAJASTHAN — 1994 DIGILAW 982 (RAJ)

Judgment B. R. ARORA, J. ( 1 ) THIS appeal is directed against the judgment dated 27. 5. 199 1, passed by the Sessions Judge, Tonk, by which the learned Sessions Judge convicted the accused-appellants for the offences under Sections 148,307/149 and 326/1491. P. C. and sentenced each of the accused to undergo two yearst rigorous imprisonment and a fine of Rs. 100/- each and in default of payment of fine further to undergo fifteen days rigorous imprisonment for the offence under Section 148 I. P. C. ; five years rigorous imprisonment and a fine of Rs. 200/- and in default of payment of fine further to undergo fifteen days rigorous imprisonment for the offence under Section 307/149 I. P. C. and three yearst rigorous imprisonment and a fine of Rs. 200/- each and in default of payment of fine further to undergo fifteen days rigorous imprisonment for the offence under Section 326/149 I. p. C. ( 2 ) ACCUSED-APPELLANTS were tried by the learned Sessions Judge, Tonk, for the offences under Sections 148,307, alternatively under Sections 307/149, 326 alternatively under Section 326/149 I. P. C. The case of the prosecution is that on 23. 8. 1989, Mohammed Hafiz, who is an illiterate person engaged in the labour-work of cutting the stones, in the morning, at about 7. 30 a. m. , had gone to Mehndi Bag on a vicky-moped to call his sister-in-law. When he reached near Ountwala Lane near the mosque, accused Yusuf Hidayat alarmed Ismail, Chhota, Hamid, Wahid, Yakub, Yusuf Hussain, Kallu and Wadu - the members of the unlawful assembly, who were sitting in Noor Hotel sitaated at Mehendi Bag, Tonk, and were armed with swords etc. On seeing Mohammed Hafiz, all these persons came there and with an intention to kill Mohammed Hafiz, inflicted injuries on his person. This incident was witnessed by Mumtaz, Majid Khan and some other persons. When Hafiz tried to run towards the hospital, he fell down in the Chowk on account of the injuries received by him, where the traffic policeman used to stand. Bashir took the injured to the hospital. The beating was given to Hafiz by the accused-appellants on account of some litigatioos between the parties pertaining to some land. The prosecution, in support of its case, examined sixteen witnesses. The accused did not examine any witness in their defence. Bashir took the injured to the hospital. The beating was given to Hafiz by the accused-appellants on account of some litigatioos between the parties pertaining to some land. The prosecution, in support of its case, examined sixteen witnesses. The accused did not examine any witness in their defence. The learned trial Court, after trial, convicted and sentenced. The accused-appellants as stated above. ( 3 ) LEARNED counsel for the appellants has not challenged so far as the incident is concemed. The only grievance raised by the learned counsel for the appellants is that from the admitted facts of the prosecution case, the case against the accused appellants does not travel beyond Section 326/149 I. P. C. and the learned lower Court was not justified in convicting and sentencing the appellants for the offence under Section 307/149 I. P. C. According to the learned counsel for the appellants, none of the members of the alleged unlawful assembly had any intention to cause death of Mohammed Hafiz. Learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below and submitted that from the case of the prosecution, the intention of the accused-appellants for causing the death of Hafiz is very much clear and the judgment passed by the learned lower Court does not require any interference. ( 4 ) I have considered the submissions made by the learned counsel for the parties and gone through the evidence produced by the prosecution. ( 5 ) FROM the evidence, produced by the prosecution, the fact of giving beatings by the accused- appellants to injured Hafiz stands established and, therefore, the learned counsel for the appellants was right in not challenging the incident. ( 6 ) THE next question, which requires consideration is: whether the conviction of the accused- appellants under Section 307/1491. P. C. was justified or not? For proving the case under Section 307/149 I. P. C. , the intention or the knowledge of the accused for causing the death of the injured has to be established, which can be deduced from the attending circumstances and for that purpose, the nature of the injuries actually caused to the injured gives considerable assistance. For proving the case under Section 307/149 I. P. C. , the intention or the knowledge of the accused for causing the death of the injured has to be established, which can be deduced from the attending circumstances and for that purpose, the nature of the injuries actually caused to the injured gives considerable assistance. Injured Mohammed Hafiz received twenty-eight injuries on various parts of his body and out of these twenty-eight injuries, twenty-four injuries are simple in nature while injuries No. 8, 15,24 and 25 were grievous in nature but they are not on the vital part of the body of Hafiz. The result of these four grievous injuries was (i) the fracture of upper 1/3rd shaft of first metacarple of left hand; (ii) fracture shaft of tibia of right leg and (iii) the fracture of anterior point of eye calcavium bone. P. W. 10 Dr. S. C. Jam, in his statement before the, Court, has stated that if injured Mohammed Hafiz would not have been given medical treatment immediately after the occurrence then these injuries would have been sufficient in the ordinary course of nature to cause his death. The doctor, regarding the sufficiency of the injuries in the ordinary course of nature to cause the death of Hafiz, did not opine this at the initial stage and it is only after when the investigating agency made a request to him in this regard that he gave this opinion. In the cross-examination, Dr. S. C. Jam has admitted that the arms, which were used by the accused in inflicting the injuries, were not used with force and if the arms would have been used with force then the injuries caused to Hafiz would have been graver in nature. He has, also, opined that the grevious injuries, i. e. , injuries No. 8, 15, 24 and 25, are not on the vital part of the body of Hafiz. As per the prosecution case, the accused were seven in number and they were armed with the deadly weapons but they have not used the weapons with ample force and did not select the vital part of the body of injured while inflicting injuries to him. The injuries received by Hafiz, according to Dr. As per the prosecution case, the accused were seven in number and they were armed with the deadly weapons but they have not used the weapons with ample force and did not select the vital part of the body of injured while inflicting injuries to him. The injuries received by Hafiz, according to Dr. S. C. Jam, were sufficient in the ordinary course of nature to cause his death if the medical treatment and care would not have been afforded to the victim just after the occurrence. He has not given any definite opinion in this regard at the initial stage that the injuries were dangerous to the life. According to him, the injuries could be dangerous to life if immediate medical aid would not have been provided to the injured-victim. Looking to the number of the accused, the size and nature of the injuries and the part (s) of the body selected by the accused, the intention or knowledge of the accused-appellants to cause murder of Hafiz cannot be inferred. The learned Sessions Judge was, therefore, not justified in convicting the accused-appellants for the offence under Section 307/149 I. P. C. The accused-appellants, therefore, deserve to be acquitted of the offence under Section 307/149 I. P. C. ( 7 ) SO far as the conviction of the accused appellants for the offence under Section 326/149 I. P. C. as well as for the offence under Section 148 I. P. C. are concerned, the same stand proved beyond a reasonable manner of doubt from the evidence produced by the prosecution. The learned Sessions Judge was, therefore, justified in convicting the accused-appellants for the offences under Sections 326/149 and 148 I. P. C. ( 8 ) THE next contention, raised by the learned counsel for the appellants is that the sentence, passed by the learned lower Court, against the accused-appellants may be reduced to the period of imprisonment already undergone by them. The incident relates to the year 1989 and the accused- appellants have suffered agony of prosecution for considerably a long period. Looking to the facts and circumstances of the case and in the interest of justice, the substantive sentence imposed upon the accused-appellants for the offence under Section 326/149 I. P. C. is reduced to the period of imprisonment already undergone by them but, however, the sentence of fine is enhanced from Rs. 200/- each to Rs. Looking to the facts and circumstances of the case and in the interest of justice, the substantive sentence imposed upon the accused-appellants for the offence under Section 326/149 I. P. C. is reduced to the period of imprisonment already undergone by them but, however, the sentence of fine is enhanced from Rs. 200/- each to Rs. 3000/- each and in default of payment of fine the appellants shall undergo two years rigorous imprisonment. Out of the amount of fine so recovered, a sum of Rs. 20,000/- be paid to injured Mohammed Hafiz. The appellants are allowed three monthst time to deposit the amount of fine. The conviction and sentence of the accused-appellants for the offence under Section 148 I. P. C. , passed by the trial Court, are maintained. ( 9 ) IN the result, the appeal, filed by the accused-appellants, is partly allowed. The judgment, passed by the learned trial Court, convicting and sentencing the accused-appellants under Section 307/149 I. P. C. is set-aside and the appellants are acquitted of this offence. The conviction and sentence of the appellants for the offence under Section 148 I. P. C. , passed by the trial Court, are maintained. The conviction of the appellants for the offence under Section 326/149 I. P. C. is, also, maintained but their substantive sentence for the offence under Section 326/149 I. P. C. is reduced to the period already undergone by them but the sentence of fine for this offence is enhanced from Rs. 200/- each to Rs. 3000/- each and in default of payment of fine to undergo two years rigorous imprisonment. If the amount of fine, is so deposited then out of the total amount of fine, a sum of Rs. 20,000/- be paid to injured Mohammed Hafiz as compensation. The appellants are allowed three months time to deposit the amount of fine. Appellants Chhota, Hamid, Yusuf, Ismail and Hayat are on bail. They need not surrender and their bail-bonds are discharged. Appellants Yakub and Bhaiyya are in jail. They may be released forthwith if not required in any other case. Appeal allowed partly.