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2004 DIGILAW 1761 (RAJ)

Sohan Ram v. State of Rajasthan

2004-12-09

GOVIND MATHUR

body2004
Judgment 1. The present appeal arises out of the decision of the Court of the Additional Sessions Judge (Fast Track), Ratangarh against the decision dated 29.08.2001 in Sessions Case No. 28/2001 (47/98). The F.I.R. was recorded on the basis of statement of Smt. Heera by A.S.I. Moolchand, Police Station Chhapar. The statement was recorded at 1:30 a.m. on 23.07.1998. In her statement, she has deposed that her father-in-law had a field near Kumharon ki Dhani that came in their share and during rainy season, they lived there. At about 6:00 a.m. when they were in their Dhani, her brother-in-law Sohan Ram accused came and said to her husband that he will not permit him to use the way. Her husband in order to negotiate went near the accused and started talking. While both the brothers were talking, Narayan Ram came and both of them dragged her husband towards the part of the field which belonged to their share. She also pursued them but at that time, accused Sohan Ram gave a “Kassi” blow on the head of her husband. He was joined by accused Narayan Ram, Sanwar Mal and Kalu Ram. The other accused persons also inflicted injuries by the weapons held by them. When she tried to intervene, she was also inflicted injuries on her head and back. Her daughter Nirmala who had arrived started shouting. At that time, Kishna and Ram Chand also arrived. The accused left her husband there, who had become unconscious. He was taken in a cart and shifted to Dadiba from where a jeep was requisitioned and injured was shifted to the hospital. 2. On the basis of such statement, first information report being FIR No. 107/1998 was registered at Police Station, Chhapara. The injured Bhera Ram succumbed to his injuries. In the meanwhile, the investigation was conducted and ultimately, the charge-sheet was filed before the concerned Magistrate. After commitment, the case was assigned to the trial Court for trial. At the time of trial, accused Sohan Ram was charged with offences under Sections 302, IPC, 364, IPC, 323/34, IPC and 447, IPC. Two accused persons namely, Sanwar Mal and Kalu Ram were charged under Sections 302/34, IPC and 323/3, IPC. Narain Ram was charged under Sections 302/34 IPC, 364, IPC, 323/34, IPC & 447, IPC. Accused denied the charges and claimed trial. Two accused persons namely, Sanwar Mal and Kalu Ram were charged under Sections 302/34, IPC and 323/3, IPC. Narain Ram was charged under Sections 302/34 IPC, 364, IPC, 323/34, IPC & 447, IPC. Accused denied the charges and claimed trial. At the trial 12 witnesses were examined on behalf of the prosecution and 24 documents were exhibited. In defence, four documents were exhibited. The accused in their statement under Section 313, CrPC, denied their implication. 3. Arguing the case of the prosecution, Public Prosecutor submitted that deceased Bheru Ram and accused Sohan Ram were real brothers. They had separate fields. Bheru Ram used to use the way from the field of Sohan Ram. Since, many years after partition of the fields, the same arrangement continued. Accused Sohan Ram was annoyed because Bheru Ram continued to use way through his fields. In this background, accused Sohan Ram dragged Bheru Ram to his field and caused injuries and in this manner, committed the crime which is fully proved by the evidence of the prosecution. Learned Public Prosecutor also submitted that the accused persons had common intention and motive to execute their desire which is correctly deposed by the eye-witnesses and testimony of the eye-witnesses is corroborated by the medical evidence. The injuries sustained by Bheru Ram was sufficient in ordinary course of nature to cause death. Thus, the alleged offences against the accused persons are rightly established. 4. The defence argument was that witnesses produced by the prosecution, one of which is Kishan Lal are not natural witnesses. They have not withstood the cross-examination correctly. The First Information Report was lodged at about 9-10 hours after the occurrence. At best, according to defence, the offence of Section 304, IPC can be said to be established against the accused Sohan Ram causing injury on the head of Bheru Ram and offence of Section 302, IPC is not made out. As regards the offence under Section 364, IPC, it was argued that there were no dragging marks available, therefore, offence under Section 364, IPC cannot be said to be made out. The forensic report has also not been produced. Had the same been in favour of the prosecution, the same would have been produced and in this background, urged that the accused are not entitled to be convicted for the offences charged. 5. The forensic report has also not been produced. Had the same been in favour of the prosecution, the same would have been produced and in this background, urged that the accused are not entitled to be convicted for the offences charged. 5. The trial Court after considering the case, came to the conclusion that PW. 1 Heera and PW. 2 Nirmala have been examined as eye-witnesses. They are wife and daughter of the deceased. PW. 1 Heera herself is an injured witness. Their testimony stands to reason. They have not been shaken in cross-examination. PW. 4 Kishan Lal and PW. 5 Sita Ram are the neighbours of the field and they have said that they arrived after the incident and saw the situation existing there. There is medical evidence as well and in this light, trial Court considering the statement of PW. 1 Heera found that she in her examination has said that since 30-35 years, they are cultivating the field and during rainy season, they live in their Dhani in the field. The field came to their share after partition by the ancestors of the deceased and the way falls in the field of Sohan Ram. On the fateful day, while she alongwith her husband and daughter were killing insects in the field, the accused came there and called the deceased. Her husband went towards him and asked as to what was that he wanted to show. Sohan Ram stated that he will not permit him to go through his fields. Her husband replied that since last 30-35 years, he has been using this field and he will continue to use the same. On this, Sohan Ram and other accused persons dragged Bheru Ram to their side of field and there, Sohan Ram inflicted a Kassi blow on the head of the deceased. Thereafter, other accused persons also joined him. When she intervened to rescue her husband, she was also given beating. She has deposed that Narayan Ram gave a blow from reverse side of the Kassi in the eye of her husband. In her statement, she has specifically stated that other accused persons used the reverse side of Kassi. On the arrival of Kishna Ram and Sita Ram, the accused made their escape. She has deposed that Narayan Ram gave a blow from reverse side of the Kassi in the eye of her husband. In her statement, she has specifically stated that other accused persons used the reverse side of Kassi. On the arrival of Kishna Ram and Sita Ram, the accused made their escape. At the time of accused causing injuries to her husband, she fell on her husband and at that time, the accused caused injuries on her back. She sustained many injuries and after the accused persons left, she took her husband to the hospital from where, doctors referred the injured to Bikaner. The injured could not be revived and he succumbed to the injuries sustained by the accused persons. The statement of PW. 2 Nirmala is by and large in conformity with the statement of PW. 1 Heera. Other witnesses also support the prosecution witnesses. Medical evidence suggest that there was injury on the head and the injury was sufficient in the ordinary course of nature to cause death. 6. After considering the case of the prosecution, the trial Court concluded that story of the defence is of no consequence because in the month of July, due to blowing of winds, it is not always possible to expect the dragging marks remaining intact after few hours on sands. The incident being of 22.07.1998 at about 6:00 p.m., the site was inspected some time in the morning of 23.07.1998 and such marks would not be available. Further, the man was not dragged in a fashion which would leave indelible marks on sand. Such marks do not remain permanent. Therefore, missing of dragging marks would not be of any consequence. 7. The deviation relied upon by the defence have also been found by the trial Court of no consequence because the basic substratum of the story has remained intact. The trial Court has found that PW. 3 Mangi Lal, PW. 4 Kishan Lal, PW. 5 Sita Ram corroborate the statement of PW. 1 Heera and PW. 2 Nirmala in their deposition. The statement of PW.1 Heera and PW. 2 Nirmala are corroborated by the statements of PW. 8 Dr. Rajendra Kumar Gaur, and PW.11 Dr.Shivratan Kochar who in substance confirmed the manner of injury sustained on the deceased. Trial Court has found that both the witnesses though illiterate have stood the test of cross-examination nicely. 2 Nirmala in their deposition. The statement of PW.1 Heera and PW. 2 Nirmala are corroborated by the statements of PW. 8 Dr. Rajendra Kumar Gaur, and PW.11 Dr.Shivratan Kochar who in substance confirmed the manner of injury sustained on the deceased. Trial Court has found that both the witnesses though illiterate have stood the test of cross-examination nicely. Further, the trial Court found that Sohan Ram having hit the deceased on head by Kassi, the offence under Section 302, IPC simplicitor is found to be established against him. As regards other accused persons, they having associated the accused Sohan Ram, their participation is also established and in that way, their sharing of common intention with the principal accused Sohan Ram cannot be denied. In this view of the matter, trial Court held that offence under Section 302/34, IPC is made out against rest of the accused persons. The trial Court has also found that offence under Section 323 read with 34, IPC is also made out against all the accused persons because they have caused injuries on PW. 1 Heera. The offences of Sections 447, IPC & 364, IPC have also been found to be established against the accused persons. 8. Impugning the findings of the trial Court, the learned Counsel for the appellant submitted that there is only one injury which can be said to be of any consequence i.e., head injury to the deceased Bhera which has been caused by Sohan Ram. The other accused persons though have caused injuries to him but they have not shared common intention of causing death with the accused Sohan Ram. The injury caused by them has not caused such harm to the deceased which would have resulted into the death of the deceased. Because through they had a Kassi like weapon in their hand, yet they used it from the backside. This only shows that they had not shared common intention with Sohan Ram for causing such bodily injury to the deceased which would result into death. They had only desired to cause injuries with reverse side of Kassi. In this case, such injuries have been inflicted by them to the deceased on the injured Heera which are simple in nature. Therefore, no positive intention of causing death of deceased can be attributed to the accused persons namely Sanwar Mal, Narain Ram and Kalu Ram. They had only desired to cause injuries with reverse side of Kassi. In this case, such injuries have been inflicted by them to the deceased on the injured Heera which are simple in nature. Therefore, no positive intention of causing death of deceased can be attributed to the accused persons namely Sanwar Mal, Narain Ram and Kalu Ram. Therefore, their conviction under Section 302/34, IPC, is bad in the eye of law. 9. Learned Counsel for the accused further submitted that the injuries sustained by Bheru Ram is an injury on the head by Sohan Ram but that is after altercation and it cannot be said that the accused had right from the beginning intended to cause such injury which would result into death. The offence under Section 302, IPC, cannot be made out against accused Sohan Ram because Sohan Ram being the real brother of deceased, he could have some dispute with the brother but it cannot be said that he would go to the extent of causing death of his brother. Therefore, according to the learned Counsel for the appellant, offence under Section 302, IPC, cannot be said to be made out against the accused persons. It is also alleged that offence under Section 364, IPC, cannot be said to be made out because the deceased was in his field and since both the brothers were only talking, the question of abduction does not arise. The offence under Section 447, IPC, could not be made out against the accused person because there was no question of any trespass among brothers. The parties were close relatives because Sohan Ram only wanted to prohibit the deceased from using the way and for that he wanted to use his persuation and in that light, he informed the deceased that he will not be permitted to use the field. For such conversation, if he has gone over the field of deceased, then it cannot be said that it was a criminal trespass as has been held by the trial Court. 10. Per Contra, learned Public Prosecutor submitted that the injury sustained by the deceased show as to what could be the intention of the accused persons. They have mercilessly given beating to the husband and wife. The husband has succumbed to the injuries. 10. Per Contra, learned Public Prosecutor submitted that the injury sustained by the deceased show as to what could be the intention of the accused persons. They have mercilessly given beating to the husband and wife. The husband has succumbed to the injuries. The prosecution case has rightly been accepted by the trial Court and there is no scope of interference in the matter. 11. We have heard the learned Counsel for the parties and given our thoughtful consideration. As regards the accused persons namely, Sanwar Mal, Narain Ram and Kalu Ram, if the case is examined from the point of view of their participation, then it stands out boldly that they have not used their weapons from the right side in causing injury. If the injuries inflicted by them do not contribute to the factor of death, then it is always safe to treat that these accused persons were not sharing the common intention for causing death. One who intends to cause death may use the weapon from the right side. Reverse side having been used by the other accused persons, a latitude is required to be given in that light that they had intended to cause harm but only that much harm which fall short of a situation where the injured would get hurt and die. 12. Right from the beginning, the intention was to prohibit the deceased from using the field. The assembly as congregated at the site had no pronounced motive as alleged by the prosecution. It was only enraged feeling of Sohan Ram and deceased on the spot of occurrence, where a real brother lost his life. The other brothers and relatives can only be said to have some grudge where they wanted to cause some harm to be caused to the deceased. Their intention could only be extended to the extent of causing physical harm and not death. Thus, the offence under Section 302/34, IPC, against the accused persons Sanwar Mal, Narayan and Kalu Ram cannot be said to be made out. 13. As regards the case of Sohan Ram, it can be observed that he has caused injury on the head with the right side of Kassi. The injury by itself exhibits as to what intentions could be there for causing such an injury. 13. As regards the case of Sohan Ram, it can be observed that he has caused injury on the head with the right side of Kassi. The injury by itself exhibits as to what intentions could be there for causing such an injury. When Kassi is used from right side and it causes such harm which has the tendency of robbing life of a man, then it cannot be said that one who had used his wits for causing injury had not intended to cause death. The case is covered by clause thirdly of Section 300, IPC. In this background, it cannot be said that the participation of the accused Sohan Ram is not covered by the definition as given in Section 300, IPC. None of the exception of this section cannot be pressed into service in the light of the testimony on record. Learned Counsel for the accused also was not in a position to bring in any case of exception under Section 300, IPC. Thus, the infliction of bodily injury by Sukh Ram resulting into death is an offence within the definition of murder. In this background, conviction of the accused appellant under Section 302, IPC, is not liable to disturbed. 14. As regards, offence under Section 447, IPC, suffice it to say that the accused persons including Sukh Ram had called the deceased and while talking, had dragged him to their side. Therefore, for bringing him to their side, they had trespassed. Therefore, offences under Sections 447, IPC and 364, IPC, are also made out against the accused persons. As regards, the offence under Section 323/34, IPC, suffice it to say that the injuries have been sustained by PW . 1 Heera and the deceased from all the accused persons. Therefore, their intention to cause bodily injury to the witnesses PW . 1 Heera and deceased is established on record and their conviction under Section 323/34, IPC, also cannot be faulted with. In view thereof , we find that the accused Sohan Ram has been rightly convicted for the offences under Sections 302, IPC, 364, IPC, 323/34, IPC and Section 447, IPC. As regards other accused persons, their conviction under Section 302/34, IPC has not been seen favourably as discussed above, however, their conviction under Sections 447, IPC, 364, IPC and 323/34, IPC, stands established. 15. As regards other accused persons, their conviction under Section 302/34, IPC has not been seen favourably as discussed above, however, their conviction under Sections 447, IPC, 364, IPC and 323/34, IPC, stands established. 15. In the result, the accused Sohan Ram who has been sentenced to life imprisonment under Section 302, IPC, his conviction and sentence is maintained. His conviction for other offences are also maintained. No separate sentence is passed under these sections as he is already sentenced to life imprisonment under Section 302, IPC. As regards rest of the accused persons namely, Sanwar Mal, Narain Ram and Kalu Ram, they are acquitted of the charges under Section 302/34, IPC. Consequently, the sentence passed against them under this section is annulled. Their conviction under Sections 364, IPC, 323/34, IPC and 447, IPC is however maintained. They are on bail. They have remained in custody for long. We deem it proper not to relegate them to jail. The sentence already undergone will be suffice to meet the ends of justice. 16. The appeal is partly allowed as indicated above.