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2004 DIGILAW 1624 (RAJ)

Badri Lal v. State of Rajasthan

2004-11-04

RAJENDRA PRASAD VYAS, SHIV KUMAR SHARMA

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Judgment Shiv Kumar Sharma, J.-The Appellants six in number, (hereinafter described as the accused), were indicted before the learned Additional Sessions Judge No. 2 in Sessions Case No. 8/1998. Learned Judge vide Judgment dated December 22, 1999 convicted and sentenced the appellants as under:- Badri Lal, Ram Kalyan and Pappu: Under Section 302 IPC: Each to suffer imprisonment for life and fine of Rs. 1,000/-, in default to further suffer imprisonment for six months. Under Section 147 IPC. Each to suffer imprisonment for six months and fine of Rs. 250/-, in default to further suffer imprisonment for six months. Under Section 148 IPC: Each to suffer imprisonment for one year and fine of Rs. 500/-, in default to further suffer imprisonment for six months. Under Section 323 IPC: Each to suffer imprisonment for six months and fine of Rs. 100/-, in default to further suffer imprisonment for six months. Ram Swaroop, Smt. Madi Bai and Om Prakash: Under Section 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 1,000/-, in default to further suffer imprisonment for six months. Under Section 147 IPC: Each to suffer imprisonment for six months and fine of Rs. 250/-, in default to further suffer imprisonment for six months. Under Section 148 IPC: Each to suffer imprisonment for one year and fine of Rs. 500/-in default to further suffer imprisonment for six months. Under Section 323 IPC: Each to suffer imprisonment for six months and fine of Rs. 100/-, in default to further suffer imprisonment for six months. The substantive sentences were directed to run concurrently. 2. A written report was submitted by Latoor Lal Meena at Police Station Indragarh on February 6, 1993 against the six accused with the averments that accused Badri with axe and other accused with lathi made assault and inflicted injuries to Mathura (now deceased) who while taken to the Hospital, died. Latoor Lal, Kishna, Ram Kanya and Bhooli also sustained injuries. Case under Sections 147, 148, 149, 307 and 302 IPC was registered and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 2, Bundi. Charges under Sections 147, 148, 302, 323, 324 and 325/149 IPC were framed against the accused, who denied the charges and claimed trial. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 2, Bundi. Charges under Sections 147, 148, 302, 323, 324 and 325/149 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 13 witnesses and exhibited 30 documents. In the explanation under Section 313 CrPC, the accused claimed innocence. The accused Badri Lal stated that the buffalo of informant entered their field, when his wife made attempt to oust buffalo, she was given beating by complainant party. When the accused Badri intervened he was also beaten up. Learned trial Judge on hearing final submissions convicted and sentenced the accused as indicated herein above. 3. Dr. Dinesh Kumar (PW. 5), who performed autopsy on the dead body of the deceased Mathura, stated that the injuries were anter mortem in nature and were caused by blunt weapon. The cause of death of deceased was head injuries. As per post mortem report (Exhibit P-19) the deceased Mathura sustained following injuries:- “1. Bruise 12 x 4cm at left tempo parietal region of skull in the middle region. 2. Bruise 10 x 4cm at left parietal region near vertex of skull. 3. Bruise4 x 2cm at forehead forward left side. 4. Swelling at left eye 4 x 4cm. 5. Clotted blood is present in and around the both nostrils. 4. The injury received by Latoor was examined vide injury report (Exhibit P-15) according to which Latoor sustained one lacerated wound measuring 1.5cm x 5cm x muscle deep on the head. Bhooli received bruise with swelling over the left ear vide injury report Exhibit P-16. Whereas vide injury report (Exhibit P-17) Kishna sustained following injuries:-“1. Lacerated wound with swelling clotted blood around the wound with fresh bleeding, 5 x 2cm muscle deep, at 18cm above the Lt. ear on the head towards post side. 2. Lacerated wound 1 x 0.5cm x muscle deep at middle of head towards ant. Side. 3. Lacerated wound 1.5 x 0.5cm x muscle deep at middle of left forearm forward lateral aspect.” Vide Injury report (Exhibit P-18) Kanya sustained following injuries:- “1. Lacerated wound 3 x 0.5cm x muscle deep at 8cm above the left ear on the Rt. head. 2. Side. 3. Lacerated wound 1.5 x 0.5cm x muscle deep at middle of left forearm forward lateral aspect.” Vide Injury report (Exhibit P-18) Kanya sustained following injuries:- “1. Lacerated wound 3 x 0.5cm x muscle deep at 8cm above the left ear on the Rt. head. 2. Lacerated wound 2.5 x 0.5cm x muscle deep at 10cm above the left ear on the head. 3. Incised wound 3cm linear x muscle deep at 12cm above the Rt. ear on the head. 4. Bruise swelling6 x 4cm at dorsum of left hand towards lateral side. 5. Bruise5 x 0.5cm at left forearm toward post side.” In the cross-examination, Dr. Dinesh Kumar admitted to have examined the injuries sustained by accused Badri, Madi Bai and Pappu. Vide Exhibit D-1, Badri Lal sustained following injuries:-“Bruise with swelling, 4 x 2cm at right side of eye in between eye and ear. 2. Bruise with swelling, 3 x 2cm at post side of the head 3. Bruise 4 x 2.5cm at middle of left forearm towards posterior lateral aspect. 4.Abrasion 2 x 0.5cm over left scapular region. 5. Lacerated wound 1 x 0.5cm at nail of middle finger of the Rt. hand” Madi Bai made complaints of receiving injuries on right shoulder, right hand and right foot and Pappu vide injury report Exhibit D-4 sustained following injures:- “1. Lacerated wound 3 x 0.5cm at right eye-brow towards medial side. 2. Bruise 2 x 1cm at lower eye lid. 3. Bruise3 x 2cm at middle of left arm towards ant. side.” 5. Having closely examined the material on record we find that Kishna (PW. 9) in his cross-examination deposed that the police never recorded his statement (Exhibit D-1). It was Badri who inflicted injury on the person of Mathura, thereafter of three accused started beating him. He then made attempt to save Mathura, received injuries and became unconscious. Informant Latoor (PW. 10) in his deposition stated that Badri gave axe blow from the blunt side on the left ear of his father (Mathura), Thereafter, Ram Kalyan and Pappu inflicted blows with wooden patti of cot as a result of which Mathura fell down and became unconscious and died on the way while taken to the hospital. Ramkanya (PW. 11) and Bhooli Bai (PW. 12) corroborated the testimony of Latoor. 6. Ramkanya (PW. 11) and Bhooli Bai (PW. 12) corroborated the testimony of Latoor. 6. Factual situation of the case may be summarised thus:- .(i) Wordy quarrel between the complainant party and the accused party arose suddenly when buffalo of complainant party entered the field of the accused party and the quarrel had led to the use of weapons by both the parties against each other; (ii) Death of Mathura was caused by reckless violence but without premeditation. The accused neither formed unlawful assembly nor shared common intention to kill the deceased; (iii)Injuries sustained by accused Badri and Pappu were not explained by the prosecution; .(iv) Evidence of Kishna (PW . 9), Latoor (PW . 10), Ramkanya (PW . 11) and Bhooli Bai (PW . 12) is not consistent qua the accused Ram Swaroop, Madi Bai and Om Prakash. Although their presence at the time of occurrence is established, their participation in the crime could not be proved beyond reasonable doubt. .(v) Accused Badri died during the pendency of instant appeal; (vi)Accused Pappu and Ram Kalyan have remained in jail for a period of more than five years. 7. It thus appears that accused Pappu and Ram Kalyan in a fit of passion without having any intention to murder the deceased, used wooden patti of cot which unfortunately resulted in death. It is not, therefore, a case where the accused had deliberately attacked the deceased with an intention to kill him and it would fall under Exception 4 to Section 300 IPC. 8. For these reasons, we dispose of the instant appeal in the following terms:- .(i) Appeal of appellant Badri Lal (now dead) stands abated. .(ii) We allow the appeal of apellants Ram Swaroop, Smt. Madi Bai and Om Prakash and set aside the conviction and sentence imposed on them by the impugned Judgment . They are on bail, they need not surrender and their bail bonds shall stand discharged. (iii) Wepartly allow the appeal of appellants Pappu and Ram Kalyan and instead of Section 302 IPC, we convict them under Section 304 Part II IPC and sentence them to the period already undergone by them in confinement. We however set aside their conviction under Sections 147, 148 and 323 IPC and acquit them of the said charges. (iii) Wepartly allow the appeal of appellants Pappu and Ram Kalyan and instead of Section 302 IPC, we convict them under Section 304 Part II IPC and sentence them to the period already undergone by them in confinement. We however set aside their conviction under Sections 147, 148 and 323 IPC and acquit them of the said charges. Appellants Pappu and Ram Kalyan, who are in jail, shall be set at liberty forthwith, if not required to be detained in any other case. (iv) The impugned Judgment stands modified as indicated above.