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2005 DIGILAW 1173 (RAJ)

Mohan Lal v. State of Rajasthan

2005-04-20

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By the instant criminal appeal under Section 374(2) CrPC, the accused-appellants have challenged the Judgment and order dated 08.06.2004 passed by the Additional Sessions Judge (Fast Track), Jalore (for short, "the trial Court" hereinafter) in Sessions Case No. 21/2003 (138/2003), by which the trial Court convicted and sentenced the appellants as under:- 1. Appellant Mohan Lal: (i) Section 447 IPC: one months rigorous imprisonment and a fine of Rs. 100/-and in default of payment of fine further to undergo 7 days simple imprisonment. (ii) Section 323 IPC: six months rigorous imprisonment and a fine of Rs. 200/-and in default of payment of fine further to undergo 15 days simple imprisonment. (iii) Section 324/34 IPC: One years rigorous imprisonment and a fine of Rs. 500/-and in default of payment of fine further to undergo one months simple imprisonment. (iv) Section 325 IPC: Three years rigorous imprisonment and a fine of Rs. 1000/-and in default of payment of fine further to undergo six months simple imprisonment. (v) Section 326/34 IPC: Five years rigorous imprisonment and fine of Rs. 1500/-and in default of payment of fine further to undergo 9 months simple imprisonment. (vi) Section 307/34 IPC: Seven years rigorous imprisonment and fine of Rs.2000/-and in default of payment of fine further to undergo one years simple imprisonment. (2) Appellant Ramesh Kumar: (i) Section 447 IPC: One months rigorous imprisonment and a fine of Rs. 100/-and in default of payment of fine further to undergo 7 days simple imprisonment. (ii) Section 323 IPC: Six months rigorous imprisonment and a fine of Rs. 200/-and in default of payment of fine to further undergo 15 days simple imprisonment. (iii) Section 324 IPC: One years rigorous imprisonment and a fine of Rs. 500/-and in default of payment of fine further to undergo one months simple imprisonment. (iv) Section 325/34 IPC: Three years rigorous imprisonment and a fine of Rs. 1000/-and in default of payment of fine further to undergo six months simple imprisonment. (v) Section 326 IPC: Five years rigorous imprisonment and a fine of Rs. 1500/-and in default of payment of fine further to undergo nine months simple imprisonment. (vi) Section 307 IPC: Seven years rigorous imprisonment and a fine of Rs. 2000/-and in default of payment of fine further to undergo one years simple imprisonment. 2. All the substantive sentences were ordered to run concurrently. 3. 1500/-and in default of payment of fine further to undergo nine months simple imprisonment. (vi) Section 307 IPC: Seven years rigorous imprisonment and a fine of Rs. 2000/-and in default of payment of fine further to undergo one years simple imprisonment. 2. All the substantive sentences were ordered to run concurrently. 3. The facts of the case, succinctly stated, are that on 16.07.2003, complainant PW. 3 Hadmata Ram lodged an FIR with Police Station, Kotwali, Jalore, to the effect that when he, his mother, father Shankar Lal, brother Chhagan Lal, sister Ansi and sister-in-law (brothers wife) Smt. Indra were sleeping in their house at about 9:00 p.m., appellants Mohan Lal and Ramesh, alongwith, Maga Ram, Smt. Lachhi and Savitri hatched a criminal conspiracy and in furtherance thereof committed criminal trespass by entering complainants house armed with deadly weapons like axes and Lathis and inflicted injuries to his father Shankar Lal, brother Chhagan Lal, sister Anchi and the complainant PW. 3. It has further been alleged that prior to this incident, appellant Ramesh crossed their house silently and on being asked why he was doing so, appellant Ramesh told what the complainant had to do. Thereafter the accused-party committed the aforesaid offences. After investigation, the police filed challan against the appellants. The trial Court framed charges against the appellants for the offences punishable under Sections 447, 323, 324, 325, 326 and 307 read with Section 34, IPC, to which the appellants denied having committed any offence and sought trial. After hearing the parties and appreciating the evidence on record, the trial Court convicted and sentenced the appellants as stated above. 4. I have heard learned Counsel for the parties and perused the impugned Judgment as also the record of the case. 5. It has been contended by the learned Counsel for the appellants that the trial Court has erred in law and on facts in convicting and sentencing the appellants and while doing so, the trial Court has not taken into consideration the material contradictions in the statement of the prosecution witnesses. His further contention is that out of 6 independent witnesses, PW. 6 Umaram, PW. 12 Kana Ram and PW. 13 Harji Ram have not supported the prosecution case and turned hostile. The trial Court, placing reliance on the statement of prosecution witnesses, namely PW. 1 Shankar Lal, PW. 3 Hadmata Ram, PW. 8 Anchi and PW. His further contention is that out of 6 independent witnesses, PW. 6 Umaram, PW. 12 Kana Ram and PW. 13 Harji Ram have not supported the prosecution case and turned hostile. The trial Court, placing reliance on the statement of prosecution witnesses, namely PW. 1 Shankar Lal, PW. 3 Hadmata Ram, PW. 8 Anchi and PW. 9 Smt. Depti, who are members of the same family and, therefore, they are interested witnesses. His further contention is that the members of accused-party also sustained injuries and a cross-case, being Sessions Case No. 144/2003 (23/2003) is pending against the members of the complainant party. His last submission is that injured PW. 1 Shankar Lal is the real brother of appellant Mohan Lal and appellant Ramesh Kumar is the real nephew of PW. 1 Shankar Lal. Both the parties have arrived at a compromise and compounded the offences, therefore, the sentence awarded to the appellants may be reduced to the period of imprisonment already undergone by them. 6. I have carefully gone through the impugned Judgment and order, as also scanned, evaluated and scrutinised the record of the trial Court. PW. 1 Shankar Lal, in his statement, has stated that appellant Ramesh inflicted injuries on his chest and head by an axe and appellant Mohan Lal also inflicted injuries with an axe. He has stated that on account of infliction of injuries, he became unconscious and ultimately he was referred to Jodhpur, where he remained admitted in hospital for ten days. Complainant PW. 3 Hadmata Ram has stated that appellants Mohan Lal and Ramesh inflicted injuries on the head, mouth and chest of his father PW. 1 Shankar Lal. He has further stated that in the incident, apart from his father Shankar Lal, his brother Chhagan and sister Anchi also sustained injuries. PW. 7 Kalu Ram alias Dhuka Ram has stated that on hearing the cries, he went to the site and saw that appellant Mohan Lal, Ramesh, alongwith Maga Ram s/o appellant Mohan Lal, wife of appellant Mohan Lal and his daughter were having Lathis and axes and they were inflicting injuries to Shankar Lal and Chhagan Ram. He has stated that appellant Ramesh inflicted axe blows on the head and mouth of injured Shankar Lal and appellant Mohan Lal and Maga Ram inflicted Lathi blows to Shankar Lal. PW. He has stated that appellant Ramesh inflicted axe blows on the head and mouth of injured Shankar Lal and appellant Mohan Lal and Maga Ram inflicted Lathi blows to Shankar Lal. PW. 8 Miss Anchi has stated that appellant Ramesh had an axe and appellant Mohan Lal had a Lathi having shape of an axe while Lachhi and Savitri had lathis. After inflicting to her father, the accused also caused injuries to her and her brothers Chhagan Lal and Hadmata. On being intervened by Kaluram and Sakaram, Kalu Ram also sustained injuries. PW. 9 Smt. Dhepi has stated that appellants Mohan Lal and Ramesh inflicted injuries to her husband Shankar Lal while he was sleeping. She further stated that on being intervened, accused inflicted injuries to her sons Chhagan and Hadmata. PW. 10 Sakaram has stated that on hearing the cries, when he reached the spot, he saw appellants Mohan and Ramesh alongwith Maga Ram, Savitra and Lachhi who were inflicted injuries to Chhagan, Shankar Lal, Hadmata and Anchi. At that time, appellant Ramesh was having an axe and other accused were having Lathis. He has stated that when he and Kaluram intervened, accused also inflicted injuries to Kalu Ram. PW. 4 Dr. Ramesh Chandra Chauhan has proved the injuries sustained by injured PW. 1 Shankar Lal, PW. 5 Chhagan Lal, PW. 3 Hadmata, PW. 8 Smt. Anchi and PW. 7 Kaluram. 7. It is, no doubt, true that there is inconsistency and some contradictions in the statement of the prosecution witnesses regarding the weapon of offence used by appellant Mohan Lal as to whether it was a Lathi or an axe. However, there is consistent statement that appellant Ramesh was having an axe and both the appellants inflicted injuries to the aforesaid injured persons. However, there is consistent statement of the prosecution witnesses that the appellants were the persons who committed criminal trespass and inflicted injuries to the aforesaid injured by deadly weapons. 8. The next question comes for consideration is: what offences have been made out against the appellants. From the medical evidence on record, it is established that injured PW. However, there is consistent statement of the prosecution witnesses that the appellants were the persons who committed criminal trespass and inflicted injuries to the aforesaid injured by deadly weapons. 8. The next question comes for consideration is: what offences have been made out against the appellants. From the medical evidence on record, it is established that injured PW. 1 Shankar Lal sustained as many as 10 injuries by sharp and blunt weapons; injured Chhagan Lal sustained 6 injuries by sharp and blunt weapons; injured Hadmata sustained 8 injuries, out of which injuries No. 1 to 7 were caused by blunt object while injury No. 8 was a teeth-bite injury; injured Smt. Anchi sustained one incised injury; and injured Kalu Ram sustained one injury caused by blunt weapon. The injuries sustained by the aforesaid injured have been caused by sharp and blunt weapons. On X-ray examination, it was further revealed that injured Shankar Lal sustained fractures on left jaw, nasal bone and left shoulder. PW. 4 Dr. Ramesh Chandra Chauhan, in the examination-in-chief , has stated that in absence of immediate treatment, injuries No. 3 and 4 sustained by PW. 1 Shankar Lal could have been dangerous to life but in cross-examination, he has stated that after scanning the X-ray report, he stated that except injury No. 4, all other injuries were simple in nature. About injury No. 4 of injured Shankar Lal was grievous in nature but it was on the nose which is not a vital part. He has further made it clear that on account of bleeding from injury No. 3, earlier he had expressed the opinion that it was dangerous to life but after perusal of X-ray report, he is saying that it was a simple injury. As such, none of the injured sustained any injury which was dangerous to life. Injured Shankar Lal and appellant Mohan Lal are real brothers and appellant Ramesh is the real nephew of injured Shankar Lal. The incident took place on spur of moment when appellant Ramesh was forbidden to cross the house of the complainant and some altercation took place between appellant Ramesh and complainant PW. 3 Hadmata, whereupon after some time, the appellants came armed with weapons and inflicted injuries to the injured. The incident took place on spur of moment when appellant Ramesh was forbidden to cross the house of the complainant and some altercation took place between appellant Ramesh and complainant PW. 3 Hadmata, whereupon after some time, the appellants came armed with weapons and inflicted injuries to the injured. There was no previous enmity between the parties and there is no evidence that any of the appellants intended to cause injuries to the members of complainant party and other injured persons, including PW. 1 Shankar Lal, to cause death. Looking to the nature of the injuries sustained by the members of complainant party, even no knowledge can be attributed to them that by their act, they would cause death of any of the members of the complainant party or other persons. In this view of the matter, looking to the nature of the injuries sustained by the members of the complainant party and the absence of any intention or knowledge on the part of the appellants, the offence under Section 307, 307/34, IPC is not made out against the appellants and they are acquitted of the offence under Section 307, IPC. 9. So far other offences are concerned, after appreciation of the evidence on record, I am of the candid view that the trial Court has rightly convicted the appellant for the aforesaid offence, except the offence under Section 307, 307/34, IPC. 10. The appellants and the members of complainant party are close relatives; a cross-case is pending against the complainant party; the parties have settled their dispute and now want to live amicably. On 18.01.2005, application under Section 320, Cr.PC has been filed by injured persons, PW. 1 Shankar Lal, PW. 3 Hadmata Ram, PW. 5 Chhagan Lal, PW. 7 Kalu Ram @ Dhooka Ram and PW. 8 Anchi and on behalf of appellants Mohan Lal and Ramesh Kumar for compounding the offences craving leave of the Court for allowing the parties to compound the offences and releasing the appellants by reducing the sentence to the period of imprisonment already undergone by them. The compromise has been verified by the Deputy Registrar (Judicial) of this Court. 11. After setting aside the conviction under Section 307, 307/34, IPC, the conviction of the appellants remains for the offences under Sections 447, 323, 324, 324/34, 325, 325/34, 326 and 326/34 IPC. The compromise has been verified by the Deputy Registrar (Judicial) of this Court. 11. After setting aside the conviction under Section 307, 307/34, IPC, the conviction of the appellants remains for the offences under Sections 447, 323, 324, 324/34, 325, 325/34, 326 and 326/34 IPC. Out of these offences, as per Table appended to Sub-section (1) of Section 320 CrPC, the offences under Sections 323, 324, IPC for causing hurt may be compounded by the person to whom the hurt is caused and the offence under Section 447, IPC may be compounded by the person in possession of the property trespassed upon. As per Sub-section (2) of Section 320 CrPC, with the permission of the Court before which any prosecution for such offence is pending, the offences under Sections 324 and 325, IPC can be compounded by the person to whom hurt is caused. Sub-section (5) of Section 320 CrPC provides that when the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or as the case may be, before which the appeal is to be heard. Sub-section (8) of Section 320, CrPC provides that the composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded. Thus, except the offence under Section 326, 326/34, IPC, all the remaining offences, for which the appellants have been convicted, are compoundable with the permission of the Court. 12. In Pappu & Ors. vs. State of Punjab, AIR 2000 SC 3633 , the accused were convicted and sentenced for the offence under Section 307, IPC. The accused and injured prosecution witnesses were close relatives and the dispute inter se settled by them by a genuine compromise between the parties. While reducing the substantive sentence to the period of imprisonment already undergone by the accused, the Honble Apex Court held as under:- "Some of the appellants in this appeal have been convicted under Section 307 read with Section 149, IPC. They have also been convicted under Sections 323 and Section 323 read with Section 149, IPC. They have been sentenced to suffer rigorous imprisonment for three years for the offence punishable under Section 307, IPC. They have also been convicted under Sections 323 and Section 323 read with Section 149, IPC. They have been sentenced to suffer rigorous imprisonment for three years for the offence punishable under Section 307, IPC. Only point now urged by the learned Counsel for the appellants is that the appellants and PWs. 3, 4 and 5 who were injured in the incident, are close relatives, they have now settled their dispute, their relations have now become cordial and therefore, their sentence may be reduced. Considering the near relationship of the parties and the fact that there is a genuine compromise between the parties, we reduce the sentence of the appellants to the period already undergone even though we maintain their conviction. The appeal is thus partly allowed." 13. In the instant appeal, injured Shankar Lal and appellant Mohan Lal are the real brothers and as such there is near relationship between the appellants and the complainant party. After acquittal of the appellants of the offence under Section 307, 307/34, IPC by this Court, except the offence under Section 326, 326/34 IPC, all the remaining offence, for which appellants conviction stands, are compoundable under Section 320, CrPC. In view of the law laid down by the Honble Supreme Court in Pappu & Ors. case (Supra), considering the amicable and genuine settlement between the parties, who are close relatives, and looking to the fact that the parties want to leave amicably, appellants and the injured complainant party are permitted to compound the offences under Sections 447, 323, 324, 324/34, 325, 325/34, IPC and on compounding of the offences, the appellants deserve acquittal for these offences. However, while maintaining the conviction of the appellants for the offences under Sections 326 and 326/34, IPC, the interest of justice would be met if the substantive sentence awarded to the appellants is reduced to the period of imprisonment already undergone by them and awarding compensation to the injured. Appellant Mohan Lal has already undergone imprisonment for 41 days during investigation, inquiry and trial and thereafter since the date of Judgment of the trial Court, i.e. 08.06.2004, he is in jail; thus, appellant Mohan Lal has already undergone the imprisonment for 417 days, i.e. one year and about two months. Appellant Mohan Lal has already undergone imprisonment for 41 days during investigation, inquiry and trial and thereafter since the date of Judgment of the trial Court, i.e. 08.06.2004, he is in jail; thus, appellant Mohan Lal has already undergone the imprisonment for 417 days, i.e. one year and about two months. Appellant Ramesh Kumar has already undergone the imprisonment during investigation, inquiry and trial for 132 days and thereafter since the date of Judgment of the trial Court, i.e. 08.06.2004, he is in jail; thus, appellant Ramesh has already undergone the imprisonment one year and five months. 14. Consequently, the appeal is partly allowed. The conviction of appellant Ramesh Kumar under Section 307, IPC and Mohan Lal under Section 307/34, IPC are hereby set-aside. The conviction of appellant Mohan Lal under Section 326/34, IPC and the conviction of appellant Ramesh Kumar under Section 326, IPC are maintained. However, the substantive sentence of imprisonment awarded to them for the offences under Sections 326, 326/34, IPC is reduced to the period of imprisonment already undergone by them and the amount of fine for the offence under Sections 326, 326/34, IPC is enhanced from Rs. 1500/-to Rs. 7500/-each, and it is directed that each of the appellants shall deposit the enhanced amount of fine with the trial Court within three months from today. Out of the amount of fine, on being deposited, a sum of Rs. 10,000/-be paid to injured PW . 1 Shankar Lal and Rs. 5,000/-be paid to injured PW . 5 Chhagan Lal as compensation. If it is not so paid, the amount shall be recovered as if the direction contained herein is a decree passed against the appellants by this Court. The appellants are acquitted of the offences under Sections 307, 307/34, IPC. They are also acquitted of the offences under Sections 447, 323, 324, 324/34, 325, 325/34, IPC on these offences having been compounded by the complainant-injured persons. The appellants are in jail. They be set at liberty forthwith, if not required in any other case. The application for suspension of sentence stands disposed of .