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2005 DIGILAW 2531 (RAJ)

Poona Ram v. State of Rajasthan

2005-09-21

VINEET KOTHARI

body2005
Judgment 1. The present appeal has been filed by the appellants Poona Ram, Gokul Ram, Hari Ram @ Harish and Sohan Ram against the Judgment of the Court of Additional Sessions Judge (Fast Track), Jodhpur in Criminal Case No. 45/2001 dated 21.09.2001. 2. Learned Counsel for the appellants has not disputed the fact of incident. However, learned Counsel for the appellants submits that looking to the nature of the injuries and the sequence of events, offence as has been held by the trial Court cannot be said to be made out. The injuries sustained by the deceased are not of the nature which can be said to be of grievous nature because the limbs have not been fractured, only an injury on the lung has resulted into excessive haemorrhage. In that light the accused may be at best, be said to be having the knowledge that their act may result into death, but they cannot be attributed an intention of killing the victim. As and when the element of intention is missing, offence punishable under Section 302 IPC cannot be said to be made out. The element of intention is not there, because when four persons are involved in an incident, they could have caused a single injury of grave nature sufficient in the ordinary course of nature to cause death. Such force has not been used which could cause an injury of that nature. The element of intention can safely be accepted to be not present, and in that view of the matter he submits that the offence will not travel beyond under Section 304-II. 3. Learned Counsel for the appellants has placed reliance in the matter of Augustie Saldanha vs. State of Karnataka, 2005 (9) SCC page 1313. 4. Per Contra, learned Public Prosecutor submits that numerous injuries have been caused without there being any reason. The accused have been ruthless in causing numerous injuries. May be that there were no fractures corresponding to the injuries but that by itself would not be an element which would be a mitigating factor. 5. We have considered the rival submissions and given our thoughtful consideration. 6. The medical report is obvious. The injury to lung is responsible for death. There were four assailants. They could have caused an injury by a single blow which could finish the man. No such force was used in causing any of the injuries. 5. We have considered the rival submissions and given our thoughtful consideration. 6. The medical report is obvious. The injury to lung is responsible for death. There were four assailants. They could have caused an injury by a single blow which could finish the man. No such force was used in causing any of the injuries. The intention for causing of death is not made out from the facts and circumstances of the case. Since, intention to cause death is not made out the offence of murder would not be made out. In that background we are persuaded that the offence as has been held to be made by the trial Court cannot be held to be made against the accused persons. Therefore, the offence under Section 302 IPC cannot to be made out and from the facts and circumstnaces it can safely be said that accused had knowledge of the act which they committed and that it may cause death. In that background the offence under Section 304-II is held to be made out. In that view of the matter we alter the sentence from Section 302 IPC to Section 304-II IPC. 7. Consequently, the appeal of accused appellants Poona Ram, Gokul Ram, Hari Ram @ Harish and Sohan Ram is partly allowed. The conviction under Section 302 IPC is set aside. Instead they are convicted under Section 304 II IPC. The accused appellants namely Poona Ram, Gokul Ram, Hari Ram @ Harish and Sohan Ram are behind the Bars since March, 2000. We are in September, 2005. Substantive sentence of the period already under gone would meet the ends of justice. Thus, they are sentenced to the substantive sentence already undergone. The accused persons are behind the Bars. They be released from Jail forthwith if not required in any other case. The sentence of fine is maintained.