Amar Chand v. State of Rajasthan — 1998 DIGILAW 469 (RAJ)

Honble PRASAD, J.–The present appellants were convicted and sentenced by the Court of Special Judge, SC/ST (Prevention of Atrocities) Act Cases and Additional Sessions Judge, Pratapgarh in Sessions Case No. 29/94 (115/93 old) vide judgment dated 8.12.1994. The appellant Amar Chand was convicted under section 302 IPC and the other two appellants Dharma and Kesia were convicted under Sec- tion 302 read with Section 34 IPC and all the three appellants were sentenced to life imprisonment with a fine of Rs.200/-. In default of payment of fine, they were to undergo two months rigorous imprisonment. The learned Sessions Judge considered the case of the prosecution and believed its witnesses and held that the accused Amar Chand caused the solitary injury available on the head of the decea- sed Kalu Singh and the accused Kesia and Dharma were assisting him. However, the accused Raya was acquitted of the offence u/Sec. 302 read with Sec. 109 IPC. (2). Briefly stated the prosecution case was that three accused persons and the deceased were seen quarrelling. At that time P.W.8 Thawar Singh came. He saw accused Amariya causing an injury on the head of Kalu Singh by stick. The other accused persons were also asserting that Kalu Singh should be finished. At that time, Gautam, Devla and Dhaniya witnesses arrived and the accused ran away from there. Thawar Singh gave the motive of the occurrence as some dispute regarding ladies. The first information report Ex.P/5 was recorded on the statements of Thawar Singh and on the basis of this report, a formal FIR Ex. P/14 was recorded on 20th March, 1993 at 11.00 A.M. The occurrence was said to have occurred around 8.00 A.M. (3). After recording of the FIR under section 307 IPC, the investigation was started. Six days later, Kalu Singh succumbed to his injuries and, thereafter, the case was converted under Section 302 IPC. After completing investigation, the cha- rge sheet was filed against the accused persons. The accused were charged under various charges. Amariya was charged under Section 302 IPC simplicitor. Dharma and Kesia were charged under section 203 read with Section 34 IPC. Raya was charged under section 302 read with section 109 IPC. The accused denied the charges and claimed trial. (4). At the trial, the prosecution examined as many as 19 witnesses and exhibited various documents of the investigation. Amariya was charged under Section 302 IPC simplicitor. Dharma and Kesia were charged under section 203 read with Section 34 IPC. Raya was charged under section 302 read with section 109 IPC. The accused denied the charges and claimed trial. (4). At the trial, the prosecution examined as many as 19 witnesses and exhibited various documents of the investigation. After considering the case of the prosecution, three accused persons, namely, Amar Chand, Kesia and Dharma were convicted as aforesaid and accused Raya was acquitted. Being aggrieved by their conviction, the accused persons have filed the present appeal. (5). The learned counsel for the accused appellants has urged that from the prosecution evidence, the motive has not been established. A very remote hint has been given that regarding some lady, there was a dispute. The occurrence has taken place in the field of Kesia, therefore, also it cannot be said that the accused had gone to the place of Kalu Singh and had caused any harm to him by going to his place or by approaching him. The deceased had come to the accused, for what it is not coming forth clearly in the prosecution case. If the statement of the eye witnesses is looked into, then it is clear that all of them are of the view that when they saw, then all the accused persons were quarrelling. A perusal of the statement of PW 3 Rajmal shows that while this witness was going to his village he heard some shout and he saw that the deceased and the accused were quarrelling in between themselves and Thawar Singh was intervening. At that time, accused Amariya gave a lathi blow to Kalu Singh. Thereafter, witnesses Gautam, Kesuram, Dhaniya, Devla etc. came. This witness in his cross-examination has stated that Amariya gave only one lathi blow and he is not aware of the reason of quarrel. (6). Another witness PW 4 Keshuram also states that while he was at his well he heard the shouts. He saw that the accused and the deceased were quarrelling. Kalu Singh was beaten by accused, but he cannot say as to which accused hit him where. (7). P.W.5 Devi Lal in his statement has stated that he had seen the quarrel going on in the field of Kesu Ram and Rawat, where Dharma and deceased Kalu Singh were quarrelling. Then, accused Amariya and Kesia came. Kalu Singh was beaten by accused, but he cannot say as to which accused hit him where. (7). P.W.5 Devi Lal in his statement has stated that he had seen the quarrel going on in the field of Kesu Ram and Rawat, where Dharma and deceased Kalu Singh were quarrelling. Then, accused Amariya and Kesia came. Amariya gave a lathi blow on the head of Kalu Singh. This witness also says that Kesia gave a lathi blow on Kalu Singh and Kalu Singh fell down. (8). P.W.7 Shambhu Singh is the son of the deceased Kalu Singh. He heard about the occurrence and after hearing of the occurrence he went on the scene of occurrence, where he found that on the boundary of Kesu Rams field, his father was lying there. He was informed by Thawar Singh that the accused persons had given beatings to his father. The motive of the occurrence was given regarding some women. (9). Another eye witness is the first informant P.W.8 Thawar Singh. In his statement, he has stated that Kalu Singh was shouting and 2.3 persons were following him, they were the three accused persons. He intervened and caughthold the accused Dharma and in the meantime, Amariya gave a lathi blow on the head of the deceased. According to this witness, Kesia also gave lathi blow on the deceased. He also alleged that he received a lathi blow at the hands of Dharma. (10). There are few other witnesses, who had either turned hostile or not spoken anything material in favour of the prosecution. (11). According to the learned counsel for the appellants, the eye witnesses have not been able to depose as to how the occurrence started. The genesis of the occurrence is not coming forth. The place of occurrence was the field of accused Kesia. If the deceased had chosen to go to Kesia and picked up fight, then it cannot be said that the accused had pre-meditated to do some harm to the deceased. How the quarrel begain has not been deposed. In absence of this material part of the prosecution case, may be that the deceased himself went to the accused persons and did something which enraged them. If the deceased himself picks up the quarrel, then it cannot be said that the accused had any common intention to cause the death of the deceased. (12). In absence of this material part of the prosecution case, may be that the deceased himself went to the accused persons and did something which enraged them. If the deceased himself picks up the quarrel, then it cannot be said that the accused had any common intention to cause the death of the deceased. (12). From the eye witnesses account, there was only one injury caused to deceased Kalu Singh, that too was a superficial injury, according to the doctors. PW8 Thawar Singh had stated that Kesia also gave lathi blows and so also PW 5 Devi Lal had stated that Kesia gave lathi blows to Kalu Singh and no other witnesses have stated that Kesia gave any lathi blow to the deceased. In the face of this controversy in the eye witnesses, it cannot be said that Kesia caused any injury to the deceased, more particularly when there is only one superficial injury on the head of the deceased and no other injury has been found on the person of the deceased Kalu Singh. (13). The motive has not been clearly established. There was a remote hint of there being dispute regarding some lady. But how that incident relating to some lady was relevant for the present quarrel has not been deposed by the prosecution witnesses. In absence of the motive, it remains important question as to why Kalu Singh went to the field of Kesia accused. Unless this question is answered, it would be a wield guess to judge as to why the occurrence started. In absence of all these details, the medical evidence may be looked into. (14). The prosecution has examined doctors to prove the medical aspect of the injuries. P.W.6 is Dr. Narendra Kohli. He examined Thawar Singh, P.W.8. According to him. Thawar Singh was complaining of pain. There was no apparent injury on his back. (15). The other doctor examined was Dr. Mukesh Kumar P.W.9, who conduc- ted the post mortem of deceased Kalu Singh. He had seen one apparent injury and abrasion on the head of the deceased on right parietal region of the dimension of 1.5 cm x 0.75 cm. On opening, he found a haematoma on the right side of the head. According to this witness, the cause of death was head injury. The external injury was superficial only. He had seen one apparent injury and abrasion on the head of the deceased on right parietal region of the dimension of 1.5 cm x 0.75 cm. On opening, he found a haematoma on the right side of the head. According to this witness, the cause of death was head injury. The external injury was superficial only. According to this witness, there was a fracture of the base of skull. (16). Another doctor examined was Dr. Govind Ram, P.W.10. He examined Kalu Singh soon after the occurrence. He had seen abrasion on the right parietal bone of the dimension 1 cm x 0.75 cm. According to this witness, at the time when he examined Kalu Singh, right ear of Kalu Singh was bleeding. His general condition was poor. The patient was admitted in the hospital and was referred for radiological examination. He received X-ray report and found no bone injury. There was no haematoma on the injury referred and examined by him. (17). The other witness examined by the prosecution is Dr. Mahesh Kumar, P.W.17, who treated Kalu Singh. During treatment, he advised Kalu Singh being taken to a Neuro Surgeon, but the son of the deceased had refused to take him. He also states that he had not seen any fracture in the X-ray report received. (18). P.W.18 Dr. K.L. Porwal who is Radiologist and conducted the X-ray exa- mination of the deceased, has stated that according to X-ray report, there was no fracture on the head of the deceased. (19). From the medical evidence, it is clear that the doctors, who attended the deceased Kalu Singh at the initial stage, found a superficial injury. There was not even a fracture noticed by those doctors. So much so that the son of the deceased was advised to take the deceased for neurological examination, but he had not accepted the advice of the doctor and under these circumstances, if due to lack of diagnosis and proper medical care, the deceased had died, then it cannot be said that the accused had intended to cause the death of the deceased. The fight was not pre-meditated and at best it could be said that the accused were guilty of cul- pable homicide not amounting to murder. The fight having taken place in the field of one of the accused persons. The fight was not pre-meditated and at best it could be said that the accused were guilty of cul- pable homicide not amounting to murder. The fight having taken place in the field of one of the accused persons. The case would indicate that the accused had not initiated the fight and in these circumstances, the accused may be convicted under Section 304 Part II. (20). The learned Public Prosecutor had controverted the facts. He has stated that without any reason, the accused had given such lathi blows on the head of the deceased that he had succumbed to his injuries. The accused had taken law in their hands and, therefore, they were not law abiding citizens and deserve to be punished and their conviction deserves to be maintained. (21). We have heard the learned counsel for the appellants and the learned Public Prosecutor and perused the record. (22). From the examination of the evidence, one aspect is clear that the occurrence had taken place in the field of accused Kesia. No explanation is coming forth as to why the deceased had gone to the field of accused Kesia. The motive alleged by the prosecution is not established as there is no clear narration about the facts of the motive. In absence of the details about motive and reason for deceased going to the field of Kesia, it cannot be said that who was the aggressor and how the quarrel initially started. (23). The evidence of the eye witnesses is clear that the injury to deceased was inflicted by accused Amar Chand. The two witnesses have stated that Kesia also gave injury on the person of the deceased, they are PW 5 Devi Lal and PW 8 Thawar Singh, but the other eye witnesses have not supported them on this count. According to the other eye witnesses, accused Amar Chand gave one blow on the person of the deceased. If the statement of the eye witnesses is examined in relation to the medical evidence, then, we would see that there was no correspond- ing injuries on the person of the deceased Kalu Singh, as suggested by two witnesses PW 5 and PW8. There was only one injury on the head and that has been assigned to accused Amar Chand. If the statement of the eye witnesses is examined in relation to the medical evidence, then, we would see that there was no correspond- ing injuries on the person of the deceased Kalu Singh, as suggested by two witnesses PW 5 and PW8. There was only one injury on the head and that has been assigned to accused Amar Chand. If the only injury on the person of deceased Kalu Singh comes to the share of accused Amar Chand, then this can be safely concluded that the other two accused had not caused any injury on the person of the deceased. (24). Once it is held that the accused appellants Kesia and Dharma had not caused any injury to the deceased, then it has to be seen whether they can be held liable with the help of Section 34 for the offence under section 302 IPC. We are afraid that there are no details coming to indicate that any common intention was formed by the accused persons to cause the death of the deceased Kalu Singh. It appears that for some unknown reason, a quarrel started and during that quarrel, accused Amar Chand caused a superficial injury on the head of the deceased Kalu Singh and if one of the accused person does an act without pre-meditation, then it cannot be said that the other accused persons who are with him have shared the common intention with him. Thus, there being no material available on record to show that the accused appellants Kesia and Dharma shared the common intention with accused appellant Amar Chand, it would not be safe to convict accused appe- llants Kesia and Dharma with the aid of Section 34 for an offence punishable under Section 302 IPC. These two accused appellants are, therefore, acquitted of the charge under Section 302 read with Section 34 IPC. (25). Now we take up the case of accused appellant Amar Chand. According to the medical evidence, Amar Chand had caused the solitary injury on the head of the deceased. The doctors who attended the deceased Kalu Singh at the initial stage have noticed that there was one superficial injury on his head. The radio logical examination also shows that there was no fracture. The patient was not getting under control with him. The doctors who attended the deceased Kalu Singh at the initial stage have noticed that there was one superficial injury on his head. The radio logical examination also shows that there was no fracture. The patient was not getting under control with him. He advised that patient be taken for neurological examination, but the family members of the deceased did not agree to it. Thus, there was a callousness on the part of the family members of the deceased in getting the proper medical care to the deceased. In the post mortem examination, the doctor has found a fracture on the base of the skull. May be that this fracture was not noticed for some reason in radiological examination. But the fact remains that the accused Amar Chand had caused the solitary injury on the head of the de- ceased which appeared to be a superficial injury at the inception. The blow was not repeated. The incident took place on 20th March, 1993 and the deceased died on 26th March, 1993. The doctor has not stated that this injury was sufficient in the ordinary course of nature to cause death of the deceased. In absence of these factors, it cannot be said with certainty that the offence is covered by clause thirdly of Section 300 IPC. (26). Looking to the nature of injury and the fact that there was no pre-meditation and the accused Amar Chand had caused this injury while the deceased had come to the field of the co- accused, may be under the heat of the patience, offence punishable under section 302 IPC is not made out. The accused Amar Chand can be said to be guilty of culpable homicide not amounting to murder. He is convicted under section 304 Part-II IPC. Sentencing him for 7 years rigorous imprisonment is considered proper to meet the ends of justice. In addition to the substantive sentence, we impose a fine of Rs.5000/- (Rs. five thousand only) and if realized, the same may be given to the next kin of the deceased. In default of payment of fine, the accused will further undergo sentence of one yearss rigorous imprisonment. (27). The appeal is partly allowed. The conviction and sentence of the accused appellants Kesia and Dharma are set aside. The conviction of the accused appellant Amar Chand is altered from Section 302 IPC to Section 304 Part-II IPC. In default of payment of fine, the accused will further undergo sentence of one yearss rigorous imprisonment. (27). The appeal is partly allowed. The conviction and sentence of the accused appellants Kesia and Dharma are set aside. The conviction of the accused appellant Amar Chand is altered from Section 302 IPC to Section 304 Part-II IPC. He is sentenced to 7 years rigorous imprisonment. We impose a fine of Rs.5000/- (Rs. Five thousand only) and if realized, the same may be given to the next kin of the deceased. In default of payment of fine, the accused-Amar Chand will further undergo sentence of one years rigorous imprisonment.