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2002 DIGILAW 639 (RAJ)

Aslam v. State of Rajasthan

2002-03-21

HARBANS LAL

body2002
JUDGMENT 1. - This appeal has been filed on behalf of the appellant against the judgment dated 13.9.84 of the learned Sessions Judge, Kota in Sessions Case No. 73/82 whereby the appellant has been convicted for the offences under Sections 332 and 333 I.PC. and has been sentenced to R.l. for a period of two years and five years respectively with a direction that the sentences shall run concurrently. 2. Briefly stated the relevant facts giving rise to this appeal are that a warrant No. 2117 dated 1.10.81 was received at Police Station, Chechat from the police Station, Narnol (Haryana) for execution against the appellant in a case under the Arms Act pending in the Court of C.J.M., Narnol. The said warrant was initially endorsed in the name of Hari Shanker ASI but before he could execute that warrant, he was transferred. Then the said warrant was endorsed in the name of Nand Singh LC 1830 of Police Station, Chechat for execution and on 19.11.81, Nand Singh with Badlu Ram and Arjun Singh posted at Police Station, Chechat were sent vide entry No. 540 in the daily diary for execution of the said warrant. During their search for appellant Aslam, they came to know that Aslam and his father Khalil had gone in the lane of Bohras after taking beetles (pan) from the beetle cabin of Kunj Bihari. Nand Singh kept standing near the said cabin and Badlu Ram and Arjun Singh both went in search of Aslam. Soon thereafter, they heard cries of Nand Singh for help whereupon they went to the place where Nand Singh was standing and found that Aslam was giving lathi blows to Nand Singh and his father Khalil exhorted and instigated him to strike him with a view to kill him. When the appellant and his father saw the other two constables coming towards them, they ran away from there. They found that Nand Singh has received injuries. They tried to catch them. They brought Nand Singh to the Police Station where F.I.R. Ex.P/1 was got registered. Nand Singh was sent for medical examination and on medical examination, he was found to have sustained one compound fracture in the right leg with 3 lacerated wounds and 4 other injuries by blunt weapon on different parts of his body. Dr. They brought Nand Singh to the Police Station where F.I.R. Ex.P/1 was got registered. Nand Singh was sent for medical examination and on medical examination, he was found to have sustained one compound fracture in the right leg with 3 lacerated wounds and 4 other injuries by blunt weapon on different parts of his body. Dr. O.R Khandelwal, who examined him, prepared his injury report and got X-ray done and thereafter, opined that his injury No. 2 was grievous and all other injuries were simple in nature. All the injuries to Nand Singh were caused by blunt weapon. 3. After completion of necessary investigation, a challan was filed against appellant Aslam for offences under Sections 332 and 333 I.PC. and against his father Khalil for the offences under Sections 332/34 and 333/34 I.P.C. which being a case exclusively triable by the Court of Sessions was committed to the Court of Sessions for trial. The trial court after hearing the charge arguments of the parties and on the basis of material on record, framed charges against the accused persons to which they pleaded not guilty and claimed to be tried. The prosecution examined 11 witnesses and got exhibited 12 documents in support of its case. In their examination under Section 313 Cr.RC., the accused persons reiterated their plea of not guilty and stated that they were falsely implicated in this case due to enmity and malice. They examined witnesses namely, Shiv Shanker D.W. 1, Ram Nath Choubey D.W. 2 and Paras Ram D.W.3 in their defence. 4. On closure of the evidence, the learned trial court heard both the sides and vide its impugned judgment acquitted the accused Khalia of the charges levelled against him giving him benefit of doubt and convicted the appellant Aslam of the charges under Sections 332 and 3331.PC. and sentenced him as indicated above. 5. Aggrieved by the said judgment, the appellant has filed this appeal before this Court. 6. I have heard the learned counsel for the appellant and learned PR on behalf of the State and have also perused and considered the entire material on record. 7. Learned counsel for the appellant has contended that Nand Singh RW. 5. Aggrieved by the said judgment, the appellant has filed this appeal before this Court. 6. I have heard the learned counsel for the appellant and learned PR on behalf of the State and have also perused and considered the entire material on record. 7. Learned counsel for the appellant has contended that Nand Singh RW. 6 has himself admitted in his cross examination that the warrant of arrest of the appellant was in the pocket of Badlu Ram which shows that the warrant was not with him at the time when he was trying to arrest the appellant. Badlu Ram along with Arjun Singh had gone towards the other side and they had returned there only on hearing the cries of Nand Singh. He has also contended that Arjun Singh RW.5 has admitted in his examination-in-chief that the accused i Khalil was saying that Nand Singh used to torture him every day, so beat him. Badlu Ram RW.1 has admitted in the cross examination that he did not hear Nand Singh talking to the accused persons and when they reached there, Nand Singh was lying unconscious on the drain. He has also argued that Nand Singh P.W. 6 has himself stated that Aslam had come from behind and struck him with a lathi on his head and gave another blow on his right leg. On the basis of these statements, he has tried to convass.that at the time of the alleged incident, Nand Singh did not and could not have shown the warrant to the appellant and could not have orally told him that he has his warrant of arrest with him because according to his own version, the appellant came from behind and assaulted on him and, therefore, it cannot be said that the injuries were caused by the appellant to him in discharge of his duties as a public servant or with the intent to prevent or deter him from discharging his duty as public servant or in consequence of anything done or attempted to be done by him in lawful discharge of his duty as public servant. So, the conviction of the appellant for the offences under Sections 332 and 333 I.PC. is not proper and he can at best be held guilty for offence under Section 325 I.PC. So, the conviction of the appellant for the offences under Sections 332 and 333 I.PC. is not proper and he can at best be held guilty for offence under Section 325 I.PC. In this regard, h&has placed reliance on an authority in case of D. Chattaiah and another vs. State of Andhra Pradesh in A.I.R. 1978 SC 1441. 8. Learned PP. has supported the judgment of learned lower court. 9. I have given my anxious and thoughtful consideration to the submissions made at the bar and have also perused the impugned judgment as also the entire record of the case. 10. It may be stated at the outset that from the evidence that has come on record, occurrence having taken place cannot be disputed but there is sufficient force and substance in the contention of learned counsel for the appellant that the conviction of the appellant for the offences under Sections 332 and 333 I.PC. is not proper in the face of the evidence that has come on record. Indeed from the statements of star eye witnesses of prosecution as pointed out by learned counsel for the appellant, it is evident that the injured Nand Singh was not having the warrant of arrest of the appellant at the time when he assaulted on him. It is also obvious that he did not tell the appellant that he wanted to arrest him as a warrant of arrest has been received against him from a court in Narnoi and from the statement of Arjun Singh RW. 5, it appears that the incident was the result of some previous or ill will cherished by the appellant against Nand Singh because of his regularly torturing him. So, in view of the law laid down by the aforesaid Supreme Court authority, it cannot be said that the injuries caused by the appellant to Nand Singh were caused in discharge of his official duties or with intent to prevent or deter him from discharging his duties. The facts as disclosed in this case indicate that the assault was a sequel of some private quarrel and the assault had no real nexus or cogent connection or consequential relation with the performance of his duties as a public servant. So his conviction for offences under Sections 332 and 333 I.PC. is unsustainable and the same deserves to be altered to one under Section 325 I.PC. So his conviction for offences under Sections 332 and 333 I.PC. is unsustainable and the same deserves to be altered to one under Section 325 I.PC. It may not be out of place to mention here that simultaneous conviction of the appellant for the offences under Sections 332 and 333 I.PC. was not proper in as much as the offence under Section 333 I.PC. embraces in it the offence under Section 332 I.P.C. which is a minor offence and the separate conviction of the appellant for Section 332 I.PC. was not called for in the facts and circumstances of the case. 11. In view of the foregoing discussion, this appeal is partly allowed, the conviction of the appellant Aslam is altered from under Sections 332 and 333 I.RC. to 325 I.RC. He has remained in custody for about 14 months during investigation, trial and appeal and the occurrence is of the year 1981 and since then, more than 20 years have elpased. So, it would not be desirable to send him again to custody after lapse of such a long period and the ends of justice would be met, if his sentence is reduced to the period already undergone and a fine of Rs. 5,000/-, in default of payment of which, he shall undergo R.l. for 2 years. 12. Three months time is granted to the appellant for depositing the amount failing which he shall be arrested and sent to jail for serving out the sentence.Appeal Partly allowed. *******