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2001 DIGILAW 1365 (RAJ)

Sohan Lal v. State of Rajasthan

2001-08-29

KHEM CHAND SHARMA, SHIV KUMAR SHARMA

body2001
JUDGMENT 1. By The Court (Oral):- The appellants Jaswant, Murari Lal and Sohan Lal were arrayed before the learned Additional Sessions Judge, Behrod, District Alwar, for having committed the murder of Jaswant S/o Dhansi Ram in Sessions Case No. 10/1995. The learned Trial Judge found all the three accused appellants guilty for offence under Section 302 and 447 of the Indian Penal Code and convicted and sentenced each of them under Section 302 I.RC. to suffer imprisonment for life and a fine of Rs. 1,000/- and in default to, further undergo six months' simple imprisonment and under Section 447 I.RC., undergo one months' rigorous imprisonment and fine of Rs. 50/- in default, to further undergo seven days simple imprisonment. 2. Against this judgment of conviction the present action for filing the appeal has been resorted to by the appellants. During the pendency of appeal, the appellant Sohan Lal was released on bail and it appears from the record that appellant Sohan Lal died on May 22, 2001. In view of the death of accused appellant Sohan Lal, we drop the proceedings against him. 3. Brief resume of the prosecution case is that on November 17, SHeerie Rav Virendra Singh PW.1 submitted a written report (Ex.R1) to the S.H.O. Police Station, Shahjanpur, District Alwar, with the averments that at around 6.00 A.M. when he had gone to plough his field, he found Jaswant S/O Dhansi Ram (since deceased) standing on the 'Dol' (boundary wall) of the field and appellants Sohan Lal, Jaswant S/o Sohan Lal and Murari Lal S/o Sohan Lal armed with axes were quarrelling in connection with the 'dol'. Suddenly, Murari inflicted axe blow on the head of Jaswant and thereafter, Jaswant S/Q-Sohan Lal and Sohan Lal also inflicted axe blow on his head. PW.2 Udai Ram who was also ploughing his field intervened. Jaswant S/o Dhansi Ram was admitted in the hospital. 4. On the basis of the said written report the Police Station, Shahjanpur, District Alwar registered a case under Section 307, 447 and 320 read with 34 of the Indian Penal Code and investigation commenced. The site was inspected site plan was drawn and the statements of the witnesses under Section 161 Cr.P.C. were recorded. The accused appellants were arrested and at their instance the weapons of the offence were recovered. The site was inspected site plan was drawn and the statements of the witnesses under Section 161 Cr.P.C. were recorded. The accused appellants were arrested and at their instance the weapons of the offence were recovered. On November 29,1994 Jaswant S/o Dhansi Ram died, the autopsy on the dead body was conducted and the case was converted in to Section 302 of the Indian Penal Code. 5. On conclusion of the investigation charge sheet came to be filed. In due course, the case was came up for trial before the learned Additional Sessions Judge, Behrod, who framed charges under Sections 302 and 447 if the Indian Penal Code. The appellant denied the charges and claimed trial. The prosecution examined as many as 13 witnesses in support of its case. Thereafter in their statement under Section 313 Cr.PC. the accused appellants pleaded innocence. Two witnesses were examined by the accused in defence. After hearing final submissions the learned trial Court convicted and sentenced the accused appellants as indicated herein-above. 6. The only argument advanced before us by Shri A.K. Gupta, the learned counsel for the appellants is that even if the case of the prosecution is accepted as it is, the appellant cannot be convicted under Section 302 of the Indian Penal Code as it has not been established from the material on record that the offence was committed by the appellant with premeditation. 7. It is further urged by the learned counsel for the appellants that Shri Pohap Singh PW.11, the Patwari of the Village, categorically stated that the filed where the incident had occurred was in the possession of the appellants. The learned counsel further canvassed that the deceased died after twelve days of the incident and from the statement of Dr. R.L. Bansal PW.12 who conducted autopsy of the dead body of the deceased, the death occurred after healing of the wounds. In the facts the circumstances of the case, Exception 4 to Section 300 I.PC. is attracted and the case does not travel beyond Section 304 Part-II. 8. Per contra, Mr. Rajendra Yadav, learned Public Prosecutor and Mr. Praveen Balwada, for the Complainant supported the impugned judgment of the learned trial Judge and canvassed that the appellants had intention to kill the deceased and this intention can be gathered from the circumstances. is attracted and the case does not travel beyond Section 304 Part-II. 8. Per contra, Mr. Rajendra Yadav, learned Public Prosecutor and Mr. Praveen Balwada, for the Complainant supported the impugned judgment of the learned trial Judge and canvassed that the appellants had intention to kill the deceased and this intention can be gathered from the circumstances. It is further urged that the act of all the appellants comes under Clause thirdly of Section 300 I.PC. and they have rightly been convicted by the learned trial Judge under Section 302 I.RC. 9. We have given our anxious consideration to the rival submissions and carefully perused the record of the case. 10. From the close scrutiny of the prosecution evidence the facts situation that emerges may be deduced as under:- (i) There was altercation between the parties before the incident had occurred. (ii) As per the eye witnesses of the prosecution, appellant Murari Lal gave axe blow on the right parietal temporal region of the deceased and appellant Jaswant inflicted axe blow on the left parietal temporal region. (iii) According to injury report Ex.R6 the deceased sustained as many as six injuries out of which five were incised wound. In the injury report, it was nowhere mentioned that the injuries were dangerous to life. (iv) As per post mortem report Ex.P.22 the cause of death of the deceased was coma brought about as a result of head injury that was sufficient to cause death in the ordinary course of nature. (v) The deceased died on November 29, 1994 i.e. after twelve days of the incident. 11. From the cross-examination of Dr. R.L. Bansal PW.12 it is revealed that the wounds sustained by the deceased were partially healed. 12. (v) The deceased died on November 29, 1994 i.e. after twelve days of the incident. 11. From the cross-examination of Dr. R.L. Bansal PW.12 it is revealed that the wounds sustained by the deceased were partially healed. 12. In order to bring the offence in the purview of Clause thirdly of Section 300 I.P.C. the prosecution has to establish that the act was done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, but if the act is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in any cruel or unusual manner, the provisions contained in Exception-4 appended to Section 300 I.P.C. shall be attracted and in that event the offence shall be culpable homicide not amounting to murder. In the instant case as already stated that there was a sudden quarrel over a 'dol' and in the heat of passion the injuries were inflicted on the person of the deceased. The appellant did not take any undue advantage or acted in any cruel or unusual manner. The deceased did not sustain instant death and he died after twelve days of incident. Though, in the post mortem report PW.12 Dr. R.L. Bansal stated that the injuries were sufficient in the ordinary course of nature to cause death, but in the earlier injury report of the deceased Ex.R6, the fact that injuries were dangerous to life was not mentioned. 13. In view of this, we are satisfied that the offence committed by the appellants does not travel beyond Section 304 Part-II I.P.C. and we hold accordingly. The appellants Jaswant and Murari Lal are in jail since November 22, 1994 and while altering their conviction from Section 302 I.P.C. to Section 304 Part-II I.P.C. we sentence them to the period already undergone by them. 14. There is no iota of evidence to prove that accused appellants entered into or upon property in the possession of deceased with the intention to commit an offence or to intimidate, in suit or annoy him. So conviction of accused appellants under Section 447 is not sustainable. 15. 14. There is no iota of evidence to prove that accused appellants entered into or upon property in the possession of deceased with the intention to commit an offence or to intimidate, in suit or annoy him. So conviction of accused appellants under Section 447 is not sustainable. 15. In the result, the appeal stands partly allowed, the impugned judgment of the learned trial Judge stands modified and instead convicting the accused appellants Jaswant and Murari Lal under Section 302 I.RC. We convict them under Section 304 Part-II and sentence them to the period already undergone by them. We also set-aside the finding of the learned trial Judge in convicting the accused appellants under Section 447 of the Indian Penal Code and they are acquitted of the charge under Section 447 of the Indian Penal Code. The accused appellants Jaswant and Murari Lal be released forthwith, if not required in any other case.Appeal partly allowed. *******