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Rajasthan High Court · body

2006 DIGILAW 119 (RAJ)

Kamdar S/o Meena v. State of Rajasthan

2006-01-10

H.R.PANWAR

body2006
Judgment H.R. Panwar, J.-This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, “the Code” hereinafter) is directed against the Judgment and order dated 211.2004 passed by the Additional Sessions Judge (Fast Track) No. 1, Sirohi, Camp Abu Road (for short, “the trial Court” hereinafter) in Sessions Case No. 33/2004 (29/2004), whereby the trial Court convicted the appellant for the offence under Section 304 Part II, IPC and sentenced him to undergo seven years rigorous imprisonment and a fine of Rs. 5,000/-, in default of payment of fine further to undergo two months imprisonment. Aggrieved by the Judgment and order impugned, the appellant has filed the instant appeal. 2. Briefly stated, the facts, to the extent they are relevant and necessary for the decision of this appeal, are that one Thawra lodged an FIR Exhibit P-29 with Police Station, Rohida, district Sirohi, on 212.2003 at about 3:30 PM, alleging therein that there was a community Panchayat with regard to the wife of one Babu who is said to have been taken away by accused Meena S/o Saja Gamti. In the said community Panchayat, it is alleged that according to the custom prevailing in the area, accused Meena who took away the wife of Babu, was to pay some amount. At about 2:30 PM., accused Bharma, Meena, Keriya, appellant Kamdar and Lasma came armed with Lathis and Kulhari (axe) and started abusing the author of the FIR Thawra, his father Jhuma and brother Lala. The complainant, his father Jhuma and brother Lala started going towards their house, upon which the accused persons named above blocked their way and started inflicting injuries to them. It was alleged that accused Meena inflicted injury by an axe to complainant Thawra and the appellant inflicted injury by Lathi and thereafter all the five accused started inflicting injuries to his father Jhuma and brother Lala by Lathis and axe. It is alleged that the occurrence took place on account of old enmity between the parties. Initially the crime report was registered for the offences under Sections 148, 341, 307, 324, 323 IPC. Injured Lal was taken to the hospital, however he succumbed to the injuries on the way to the hospital and the offence under Section 302, IPC was added. Initially the crime report was registered for the offences under Sections 148, 341, 307, 324, 323 IPC. Injured Lal was taken to the hospital, however he succumbed to the injuries on the way to the hospital and the offence under Section 302, IPC was added. The appellant and four others, namely Bharma, Meena Keriya and Lasma were charged for the offences under Sections 148, 341, 323, 323/149, 323/149, 325, 325/149, 302, 302/149 IPC and they denied the charges and sought trial. During pendency of the trial, Thawra, the author of the FIR, met his natural death and injured Jhuma did not appear as a prosecution witness. Some of the witnesses turned hostile and the two eye-witnesses, viz. PW. 7 Dhula and PW. 8 Rama were produced, who supported the prosecution case. The autopsy on the dead-body of deceased Lala was conducted by PW. 5 Dr. Sumer Singh Bhati, according to whom, the cause of death of deceased Lala was due to the head injury i.e., injury No. 1 which was sufficient in the ordinary course of nature to cause death, vide Exhibit P-17. The trial Court, on appreciation of the evidence, came to the conclusion that the prosecution has proved the case against the appellant for the offence under Section 304 Part II, IPC and against co-accused Meena for the offence under Section 323, IPC; however, the trial Court came to the conclusion that the prosecution has failed to prove the case against co-accused Bharma, Keriya and Lasma for the offences under Sections 148, 341, 323 and 302/149, IPC and co-accused Meena for the offences under Sections 148, 302, 341 read with Section 149, IPC and accordingly, they were acquitted of these offences. Accused Meena, instead of sentencing at once to any imprisonment, was released on probation. The appellant was sentenced as noticed above. 3. I have heard learned Counsel for the parties. Perused the impugned Judgment and order as also the record of the trial Court. I have scanned, scrutinized and evaluated the evidence on record. 4. Accused Meena, instead of sentencing at once to any imprisonment, was released on probation. The appellant was sentenced as noticed above. 3. I have heard learned Counsel for the parties. Perused the impugned Judgment and order as also the record of the trial Court. I have scanned, scrutinized and evaluated the evidence on record. 4. It is contended by the learned Counsel for the appellant that in the FIR Exhibit P-29, Thawra, the author of the FIR, stated that the appellant inflicted a Lathi blow to him and also stated that co-accused Meena was armed with a Kulhari (axe) and inflicted injury to him and, therefore, on the strength of the FIR Exhibit P-219, learned Counsel submits that it was co-accused Meena who was armed with an axe and the appellant was allegedly armed with a Lathi only, therefore, it cannot be said that the injury inflicted to deceased Lala on his head was caused by the appellant. Witnesses PW. 7 Dhula and PW. 8 Rama categorically stated that the appellant inflicted injury on the skull of deceased Lala from the rear side of the axe, which runs counter to the contents of the FIR. It was further contended that during the community Panchayat, there was a sudden fight and therefore, it cannot be said who inflicted injury to the deceased on his head. It was further contended that looking to the manner in which the occurrence took place, it cannot be said that the appellant had the knowledge that the injury caused by him was likely to cause death of Lala and, therefore, at the best if conviction of the appellant is up held then the appellant can be convicted for the offence under Section 325, IPC and not under Section 304 Part II, IPC. Lastly, learned Counsel for the appellant contended that the occurrence took place on the spur of moment on raising some objection by the deceased in the community Panchayat, which is the cause of the occurrence and, therefore, the sentence of imprisonment awarded to the appellant is disproportionate and it may be reduced to the period of imprisonment already undergone by him. At any rate, according to the learned Counsel, the manner in which the occurrence took place, the sentence awarded by the trial Court to the appellant is excessive. 5. At any rate, according to the learned Counsel, the manner in which the occurrence took place, the sentence awarded by the trial Court to the appellant is excessive. 5. Learned Public Prosecutor appearing for the State supported the Judgment and order impugned and contended that there is no reason to disbelieve the two eye-witnesses, viz. PW. 7 Dhula and PW. 8 Rama and, therefore, the conclusion arrived at by the trial Court, according to the learned Public Prosecutor, is just and proper. 6. I have given my thoughtful consideration to the rival submissions made by the learned Counsel for the parties. 7. The presence of the appellant at the place of the occurrence has been shown right from the time of lodging the FIR. Though Thawra, the author of the FIR met the natural death during pendency of the trial and could not appear to prove the contents of the FIR Exhibit P-29, but from the perusal of the FIR, it is clear that the appellant, alongwith other co-accused Bharma, Meena, Keriya and Lasma, was said to be the assailant. In the FIR, it is clearly mentioned that all the five accused joined together and inflicted injuries to Thawra, the author of the FIR, his father Jhuma and brother deceased Lala by Lathis and axe. Vide Exhibit P-35, while in police custody, the appellant voluntarily gave an information under Section 27 of the Evidence Act to get the axe recovered from the place near a Nalla, where it had been concealed. In furtherance of the said information, an axe was recovered vide Exhibit P-24. On being chemically analysed by the State Forensic Science Laboratory vide Exhibit P-41, the axe Article 9, from tick-mark “i” was found to be stained with blood of human origin. 8. I have carefully gone through the statements of eye witnesses PW. 7 Dhula and PW. 8 Rama recorded by the trial Court, as also their previous statement recorded under Section 161 of the Code, wherein they have categorically stated that it was the appellant who was armed with an axe and inflicted injury on the skull of deceased Lala from the rear side of the axe. PW. 7 Dhula is an eye witness of the occurrence. He stated that there was a community Panchayat relating to Seeta W/o Babu. Seeta was found to be guilty and was to pay Rs. 12,000/-as manages. She paid Rs. PW. 7 Dhula is an eye witness of the occurrence. He stated that there was a community Panchayat relating to Seeta W/o Babu. Seeta was found to be guilty and was to pay Rs. 12,000/-as manages. She paid Rs. 6,500/-and the remaining amount of Rs. 5,500/-was to be paid later on. On non-payment of the said amount, the community Panchayat was called. Instead of payment of Rs. 5,500/-in cash, it is stated that in lieu thereof , some cattle, including a bull, were agreed to be given, which the other party did not accept and insisted for giving the balance amount in cash. In the community Panchayat, when deceased Laliya (Lala) got up, the appellant inflicted injury on the skull of Lala from the rear side of the axe, upon which Laliya fell down. Thereafter co-accused Meena inflicted injury to Jhuma by a Lathi and co-accused Bharma to Thawra on his head by Lathi, Keriya inflicted injury to Thawra by Lathi and co-accused Lasma was standing with a Lathi saying that they be assaulted. He further stated that he, alongwith other, made an effort to rescue them. Thereafter the accused persons fled away from the place of the occurrence. Deceased Lala, Jhuma and Thawra were taken to the hospital at Shivganj and on being advised by the Doctor, they were taken to Sirohi Hospital and while on the way to the Sirohi hospital, Lala succumbed to the injury. He accompanied the injured persons to the Sirohi hospital. He has also proved the site map Exhibit P-22, the seizure memo Exhibit P-23, Panchnama Exhibit P-20 and Furd-Surat-Haal Lash Exhibit P-21. In cross-examination, he admitted that both the parties grappled each other. So far as injury caused by the appellant to deceased Lala on his head is concerned, no such question was put to this witness that it was not the appellant who caused head injury to deceased Lala. Thus, the statement of this witness, so far as causing injury on the head of deceased Lala by the appellant from the rear side of the axe, remains uncontroverted. 9. PW. 8 Rama is the another eye-witness to the occurrence. He was present in the said community Panchayat. He also made the similar statement with that of PW. 7 Dhula and stated that one of the parties, instead of payment of remaining amount of Rs. 9. PW. 8 Rama is the another eye-witness to the occurrence. He was present in the said community Panchayat. He also made the similar statement with that of PW. 7 Dhula and stated that one of the parties, instead of payment of remaining amount of Rs. 5,500/-in cash, wanted to give goats, bull etc., for which the other party did not agree and the quarrel took place. The appellant inflicted head injury on the skull of deceased Lala from the rear side of the axe, upon which Lala fell down. He further stated that co-accused Meena inflicted Lathi blow to Jhuma and Keriya and Bharma inflicted Lathi blows to Thawra. Co-accused Lasma did not nothing. He was subjected to lengthy cross-examination but his evidence remained unshaken. 10. PW. 5 Dr. Sumer Singh Bhati proved Exhibit P-17, the post-mortem report of deceased Lala and stated that there was a lacerated wound 3"x2" scalp deep on the right occipital region of deceased Lala. Injury No. 2 was swelling 2"x 2" above the left elbow of deceased Lala. He categorically stated that injury No. 1 resulted in fracture of right occipital bone damaging the brain and the brain was depressed. According to him, the cause of death of deceased Lala was due to head injury, i.e., injury No. 1. According to him, injury No. 1 was sufficient in the ordinary course of nature to cause death. Thus, the statements of PW. 7 Dhula and PW. 8 Rama find corroboration from the statement of PW. 5 Dr. Sumer Singh Bhati. 11. PW. 1 Lada and PW. 2 Saka Ram are not the witnesses to the occurrence. PW. 3 Gaina did not support the prosecution case and turned hostile. PW. 4 Dr. Bhagwan Sahai, Radiologist, has proved the X-ray plates and the Radiological Report Exhibit P-21 of Jhuma, but since Jhuma himself did not appear in the witness-box, therefore, it is of no relevance. PW. 6 Babu is not a witness to the occurrence. He stated with regard to the community Panchayat. PW. 9 Jiva Ram is a witness to the recovery of the axe vide Exhibit P-24 from the appellant, as also the recovery of Lathis from other co-accused. PW. PW. 6 Babu is not a witness to the occurrence. He stated with regard to the community Panchayat. PW. 9 Jiva Ram is a witness to the recovery of the axe vide Exhibit P-24 from the appellant, as also the recovery of Lathis from other co-accused. PW. 10 Mool Singh, the then A.S.I., Police Station, Rohida has proved Exhibit P-20, Exhibit P-21 and Exhibit P-22 i.e., Furd-Surat-Haal Lash, Furd Supurdgi-Lash and Panchnama etc., as also the recovery of garments of deceased Lala vide Exhibit P-23. 12. PW. 11 Talka Ram, the then Head Constable, recorded the information furnished by Thawra vide Exhibit P-29. He was also the Malkhana Incharge and proved the Malkhana Register Exhibit P-32. He stated that on 19.01.2004, he handed over 14 sealed packets to Constable Kishan Lal PW. 15 to be sent to State Forensic Science Laboratory vide Exhibit P-31. He has proved Exhibit P-33 and Exhibit P-34. 13. PW. 14 Ghulam Rasul, the investigating officer, has proved the investigation. He has proved that the appellant furnished an information under Section 27 of the Evidence Act vide Exhibit P-35 and got a blood-stained axe recovered, by which he inflicted injury to deceased Lala. Vide Exhibit P-24, the blood-stained axe was recovered at the instance of the appellant. He also recovered the blood-stained Kamiz (shirt) of the appellant vide Exhibit P-10. 14. PW. 15 Kishan Lal is a witness, who carried the sealed articles to the State Forensic Science Laboratory and stated that as long as the articles remained with him, the seals thereon remained intact. 15. On close scrutiny of the statements of the prosecution witnesses, more particularly the statements of PW . 7 Dhula and PW . 7 Rama, it is clear that it was the appellant who inflicted injury by rear side of the axe on the skull of deceased Lala, which proved fatal according to the statement of PW . 5 Dr. Sumer Singh Bhati and the post-mortem report Exhibit P-7. This further finds support from the information furnished by the appellant under Section 27 of the Evidence Act, in furtherance thereof , the blood-stained axe was recovered and the said axe, on being chemically analysed by the State Forensic Science Laboratory, was found to be stained with human blood. 5 Dr. Sumer Singh Bhati and the post-mortem report Exhibit P-7. This further finds support from the information furnished by the appellant under Section 27 of the Evidence Act, in furtherance thereof , the blood-stained axe was recovered and the said axe, on being chemically analysed by the State Forensic Science Laboratory, was found to be stained with human blood. Thus, in my view, the trial Court was justified in concluding that it was the appellant, who inflicted head injury to Lala by an axe, which proved fatal. 16.The next question arises for consideration is what offence has been made out against the appellant. According to the learned Counsel for the appellant, the offence does not travel beyond Section 325, IPC and, therefore, appellants conviction under Section 304 Part II, IPC cannot be sustained; per contra, learned Public Prosecutor submitted that the injury inflicted by the appellant was on the vital part of body of the deceased and, therefore, the trial Court is justified in convicting and sentencing the appellant for the offence under Section 304 Part II, IPC. .17. In Tarseem Singh & Ors. vs. State of Punjab, 2002 (2) SCC 673 , while assailing the conviction of the appellants therein, it was contended that the incident took place all of a sudden and the injury inflicted to the deceased was minor in nature and not deep enough so as to indicate that the accused must have had the knowledge that they could cause death. The Honble Court, while dismissing the appeal, held as under:- .“The trial Court found that at least one of the injuries caused on the deceased was severe enough to cause death in the ordinary course of nature. Based on the evidence of the doctor, it was rightly concluded by the Courts below that an incised wound of 3 x ½ inches on the right side of the scalp just above the left ear which caused the fracture of left parietal and left temporal bone extending to the frontal and occipital region could never be treated as an injury contemplated under Section 325, IPC, but should be held to be one that would cause the death of a person. Therefore, having regard to the said fact, the Courts below rightly convicted the appellants for the offence punishable under Section 304 Part II, IPC.” 18. Therefore, having regard to the said fact, the Courts below rightly convicted the appellants for the offence punishable under Section 304 Part II, IPC.” 18. In the instant case, the appellant inflicted a Lathi blow on the head of deceased Lala, as a result of which he suffered a lacerated would 3" x 2" scalp deep on the right occipital region, which resulted in a fracture and depression of the brain, which proved fatal. According to PW. 5 Dr. Sumer Singh, this injury was sufficient in the ordinary course of nature to cause death and proved fatal. As such, it can be inferred that the appellant was having knowledge that by his act, the death of deceased could result. Therefore, in view of the decision of the Honble Supreme Court in Tarseem Singh & Ors. vs. State of Punjab (Supra), the appellant has rightly been convicted for the offence under Section 304 Part II, IPC. 19. The last submission made by learned Counsel for the appellant is that the sentence awarded by the trial Court is proportionately high and a reduction therein is solicited. While convicting the appellant for the offence under Section 304 Part II, IPC, the trial Court awarded the sentence of seven years rigorous imprisonment and a fine of Rs. 5,000/-, in default of payment of fine further to undergo two years imprisonment. .20. In Shivappa Buddappa Kolkar alias Buddappagol vs. State of Karnataka & Ors., 2005 SCC (Cri.) 93, a single blow with an axe on the head of the injured was caused by the appellant therein on the spur of moment causing depressed fracture of skull bone. The appellant was convicted for the offence under Section 302, IPC and sentenced to imprisonment for life. The Honble Apex Court held as under:- .“Considering the facts and circumstances of the case, we fell that imprisonment for a period of five years and a fine of Rs. 7,000/-would meet the ends of justice. The impugned order is modified to the extent that the appellant shall stand convicted under Section 304 Part II and he shall undergo rigorous imprisonment for a period of five years and a fine of Rs. 7,000/-. Out of the fine amount of Rs. 7,000/-, Rs. 6,000/-should be paid over to the wife (PW. 4) of the deceased. The learned Sessions Judge take necessary steps in this behalf . 7,000/-. Out of the fine amount of Rs. 7,000/-, Rs. 6,000/-should be paid over to the wife (PW. 4) of the deceased. The learned Sessions Judge take necessary steps in this behalf . In default of payment of fine, there shall be imprisonment for a further period of one year. 21. In Bagdi Ram vs. State of M.P., AIR 2004 SC 387 , only one injury was caused by the appellant therein to the deceased and there was no repetition of the injury. Giving benefit of Exception 4 to Section 300 to the appellant, the Honble Apex Court held the appellant guilty under Section 304 Part I, IPC and observed as under:- “Having appreciated the entire evidence on record we are satisfied that the High Court was right in holding that the appellant and other members of his family had no apprehension of danger to their person because members of the prosecution party were all unarmed. It has come in evidence, and the High Court has also recorded a finding that at some stage brick-bats were pelted from both sides by members of the families of Bagdi Ram and Maniglal which induced some ladies. The injuries on the person of three of the accused are thus explained. Since, both the parties indulged in brick-batting the High Court has given the benefit thereof to the defence and has acquitted four of the accused persons against whom there was no direct evidence of having participated in the assault. The High Court has analysed the evidence on record with a view to find out which of the members of the defence party actually assaulted the members of the prosecution party. So far as the appellant is concerned, the evidence is clear and categoric that it was he who assaulted the deceased on his head with “gainti (pick-axe). The High Court, however, held and in our view, rightly, that in the facts and circumstances of the case the appellant did not intend to cause the death of the deceased. There was an altercation followed by assault on PWs. 1 and 4 and brick-batting from both sides. When tempers cran high, in the heat of passion, upon sudden quarrel, the appellant assaulted the deceased though unarmed, but without premeditation. There was an altercation followed by assault on PWs. 1 and 4 and brick-batting from both sides. When tempers cran high, in the heat of passion, upon sudden quarrel, the appellant assaulted the deceased though unarmed, but without premeditation. He caused only one injury to the deceased by picking up the “gainti (pick-axe) lying there, and the fact that he did not repeat the blow is indicative of the fact that he did not intend to cause the death of the deceased. The High Court gave to the appellant the benefit of Exception 4 to Section 300 and found the appellant guilty of the offence under and Section 304 Part I, IPC. We find no error with the finding recorded by the High Court. But in the facts and circumstances of the case we are of the view that the sentence of eight years is on the higher side. The ends of justice would be met if the sentence is reduced to three years rigorous imprisonment. 22. In the instant case, the appellant inflicted a single injury to the deceased by an axe and there is no repetition of the injuries. In view of the law laid down by the Honble Apex Court in Shivappa Buddappa Kolkars case (Supra), and Begdi Rams case (Supra), sentence of seven years rigorous imprisonment is on the higher side and the ends of justice would be met if the sentence of imprisonment is reduced to five years rigorous imprisonment. 23. Consequently, the appeal is partly allowed. While maintaining the Judgment of conviction dated 211.2004 passed by the Additional Sessions Judge (Fast Track) No. 1, Sirohi, Camp Abu Road in Sessions Case No. 33/2004 (29/2004), the substantive sentence of imprisonment is reduced to five years rigorous imprisonment. The sentence of fine of Rs. 5,000/-is maintained. On depositing the amount of fine, it may be paid over to the legal heir of deceased Lala. In default of payment of fine, the appellant shall further undergo two months imprisonment.