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2006 DIGILAW 316 (RAJ)

Asha Ram v. State of Rajasthan

2006-01-31

KHEM CHAND SHARMA, SHIV PRAKASH SHARMA

body2006
Honble K.C. SHARMA, J.–This criminal appeal by 12 accused appellants arises out of the judgment and order dated 30.7.2001 passed by the learned Sessions Judge, Sawaimadhopur, by which the learned Judge has convicted and sentenced the appellants in the following manner: Under Section 148 IPC : To undergo 2 months rigorous imprisonment each Under Section 302, in the alternative under Section 302/149 IPC : To undergo life imprisonment with a fine of Rs. 5000/- each, in default of payment of fine, each to further undergo two months simple imprisonment Under Section 326, in the alternative under Sec. 326/149 IPC To undergo 3 years rigorous imprisonment with a fine of Rs. 2000/- each, in default of payment of fine, each to further undergo one months simple imprisonment Under Section 325, in the alternative under Section 325/149 IPC To undergo 2 years rigorous imprisonment with a fine of Rs. 2000/- each, in default of payment of fine, each to further undergo one months simple imprisonment All the sentences were ordered to run concurrently. (2). The facts leading to the present appeal are that on 17.10.1999 the police recorded Parcha Bayan of Katol alias Gauri Shanker in General Hospital Sawaimadhopur, wherein he stated that on the day of incident i.e. 17.10.99 at 5.30 PM he along with Rambilas, Ramkalyan, Daulatram and Mool Chand father of the complainant was sitting at the well. In the meantime, Mst. Kamla wife of Ramkalyan came to fetch water at well known as Baman- wala. Accused Asharam and Murari Sons of Bajranglal, Babu S/o Rati Ram, Bhartlal S/o Babu, Moolchand, Shyoji S/o Harji, Ratan S/o Harji, Phool Karan S/o Chatru, Harphool S/o Bharta, Mulya S/o Rati Ram, Hanuman S/o Mulya duly armed with lathi, gandasi and Kulhadi came from the well of Asharam. It was alleged that accused Asharam and Mulya Ram were armed with Gandasi, while Harphool and Phool Karan were armed with Kulhadi and rest of the accused were armed with lathis. The accused persons, in order to kill them, opened attach and started belabouring hem. Accused Asharam inflicted a gandasi blow on the mouth of Rambilas, as a result of which his lip was cut and teeth were broken, while accused Mulya inflicted a gandasi blow on the head of Rambilas. The accused persons, in order to kill them, opened attach and started belabouring hem. Accused Asharam inflicted a gandasi blow on the mouth of Rambilas, as a result of which his lip was cut and teeth were broken, while accused Mulya inflicted a gandasi blow on the head of Rambilas. Accused Harphool inflicted Kulhadi blow on the hand and head of Ram Kalyan, while Phool Karan inflicted axe blow on the head and hand of Daulat Ram. Rest of the persons caused injuries on the head and shoulders of complainant. The house and cry attracted the attention of Mst. Kamli who came running from the well, but the accused persons did not spare her and inflicted injuries to her also. Mst. Lata W/o Rambilas also came at the scene, but she too was given beating. Ultimately, having seen the villagers, the accused persons escaped from the place of incident. Thereafter all the injured left for hospital in a Jeep of one Hajari Mali. It was stated that except complainant, the condition of other injured was precarious. (3). On the basis of aforesaid Parcha Bayan, the police registered a case against the accused persons for offence under Sections 147, 148, 149, 323, 324 and 307 IPC vide FIR No. 323/99 and proceeded with the investigation. In the course of investigation injured Ram Kalyan succumbed to his injuries and accordingly Section 302 IPC was added. Considering the nature of injuries, the police further added Sections 325, 326 and 379 IPC. Having completed investigation, the police submitted a charge sheet against the accused persons in the Court of learned Magistrate. The learned Magistrate having found the offence exclusively triable by the Court of Sessions, committed the case of the Court of Sessions. (4). On the basis of evidence and material collected during investigation and after hearing arguments, the learned Trial Court framed charges. The accused denied the charges and claimed trial. (5). In order to prove its case, the prosecution examined as many as 24 witnesses and got exhibited 79 documents. AFter the prosecution evidence was over, the accused were examined under Section 313 Cr.P.C. In their explanation, the accused stated the prosecution case to be false. Accused Mool Chand in his explanation started that they have 11 biswas of land in village Jatwada-Kalan and the complainant party was trying to grab their land by force. AFter the prosecution evidence was over, the accused were examined under Section 313 Cr.P.C. In their explanation, the accused stated the prosecution case to be false. Accused Mool Chand in his explanation started that they have 11 biswas of land in village Jatwada-Kalan and the complainant party was trying to grab their land by force. He further stated that earlier the members of complainant party had caused injuries to Mahendra and Bharat and a case to that effect was already going n in the Court and that being the reason the complainant has falsely involved them. Some what similar explanation has also been offered by other accused persons. (6). At the conclusion of trial, the learned Trial Court found the accused appellants guilty of the offences charged and accordingly convicted and sentenced them in the manner stated herein above. (7). We have heard learned counsel for the appellants, learned Public Prosecutor and the learned counsel appearing for the complainant and scanned the evidence and material available on record. (8). Mr. Sogarwal, appearing for the appellants strenuously contended that the learned Trial Court has committed grave error in convicting appellants Mahindra, Babu Lal, Ratan Lal, Mool Chand S/o Harji, Sheoji and Murari. Referring the statements of eye witnesses, learned counsel argued that none of the 5 witnesses who alleged to have seen the incident has stated that the above named six appellants formed unlawful assembly. Except that these six appellants duly armed with lathis were present at the place of incident, none of the witnesses has been able to assign overt act of these appellants. In this background, learned counsel argued that above named six appellants deserve to be acquitted of the offences charged with. (9). We have given our thoughtful consideration to the above argument. In the FIR Ex.P-49 there is no allegation of beating having been given by appellants Mahendra, Babu Lal, Ratan Lal, Mool Chand S/o Harji, Sheoji and Murari either to the deceased or any member of the complainant side. The FIR simply reflects that the above named six appellants duly armed with lathies came along with other appellants. It does not mentions the overt-act of any of these six appellants. That apart, five witnesses, namely, PW3 Gauri Shanker, PW9 Daulat Ram, PW13 Mst. Kamla, PW16 Ramvilash and PW18 Mst. Lata have been introduced as an eye witnesses of the incident. It does not mentions the overt-act of any of these six appellants. That apart, five witnesses, namely, PW3 Gauri Shanker, PW9 Daulat Ram, PW13 Mst. Kamla, PW16 Ramvilash and PW18 Mst. Lata have been introduced as an eye witnesses of the incident. All these eye witnesses have given omnibus statement inasmuch as, according to these eye witnesses, these appellants inflicted injuries. However none of the eye witnesses has been able to state as to which of these six appellants inflicted injuries to which of the injured and on which part of their body. In this view of the evidence, the prosecution has not been able to establish beyond doubt the participation of these six appellants in the commission of crime, except that they came at the place of incident along with other appellants and as such it cannot be concluded that the above named six appellants were also the members of unlawful assembly and therefore, they are entitled to be acquitted of the offences for which they have been found guilty. (10). The second argument that has been canvassed before us was that conviction of rest of the appellant for offence under Section 302 IPC is not sustainable in the eye of law. Referring the injury report, post mortem report, the statement of PW24 Dr. Rajesh Kumar Verma and the evidence of eye witnesses, learned counsel vehemently argued that the injuries attributed to appellants Asha Ram, Bharat Lal, Moolya, Hanuman, Phool Karan and Harphool are all on non-vital parts of the body of deceased and that these injuries were not at all responsible for causing death of deceased Ram Kalyan. The eye witnesses, referred to above have not attributed the injury on skull of the deceased which proved fatal and resulted in death of the deceased. (11). We have given our thoughtful consideration to the above argument and have scanned the relevant evidence. PW1 Dr. M.L. Kawat, who initially examined injured Ram Karan (since deceased) on 20.10.1999 has found diffused swelling all over the scalp as is evident from the injury report Ex.P-4. In the course of treatment, injured Ram Kalyan died. Thereafter PW24 Rajesh Kumar Verma conducted autopsy on the dead body. He deposed in categorical terms that no external injury was visible on scalp. However, the witness noticed diffused swelling on left fronto parietal region and left occipital region. In the course of treatment, injured Ram Kalyan died. Thereafter PW24 Rajesh Kumar Verma conducted autopsy on the dead body. He deposed in categorical terms that no external injury was visible on scalp. However, the witness noticed diffused swelling on left fronto parietal region and left occipital region. On dissection of body, the doctor found sub-scalp haematoma beneath the swelling. He further noticed contusion on cerebellar region and porsillar region, which is fortified from a glance at the post mortem report Ex.P-79. The doctor has further specifically deposed that no body injury on skull was found. In his opinion, the swelling on scalp was due to some injury caused by blunt weapon and that haematoma itself is an indication of injury. The witness further opined that cause of death of deceased was coma as a result of injuries to brain. one of the eye witnesses of the incident has attributed the above fatal injuries to brain to any of the appellants. In fact the medical jurist also did not notice any external injury on scalp except swelling. As already stated above, PW1 Dr. M.L. Kawat who initially examined the injuries of deceased had found diffused swelling all over the scalp. The doctor however during internal examination found sub scalp haematoma beneath the swelling as also contusion on cerebellar region and porsillar region. In any case there were no corresponding external injuries. The injuries attributed to appellants Asha Ram, Bharat Lal, Moolya, Hanuman, Phool Karan and Harphool are all on non-vital parts of the body of deceased and those injuries were not responsible for the death of Ram Kalyan. For the reasons, therefore, the conviction of these six appellants under Sec. 302 IPC cannot be sustained and deserves to be quashed. We are fortified in our view by a decision of the Apex Court in Kathi Odhabhai Bhimabhai & Ors. vs. State of Gujarat (1993 Cr.L.R. (SC) 720). In this case, under some what similar circumstances as are existing in the case at hand, two doctors who examined the deceased found only one contused lacerated wound over right fronto-parietal region and only ordemna over the right lower eyelid and the deceased died one week later. The doctor who conducted the post mortem also found only two external injuries but internally he found the fracture of three ribs on the right side and fracture of two ribs on the left side. The doctor who conducted the post mortem also found only two external injuries but internally he found the fracture of three ribs on the right side and fracture of two ribs on the left side. But there were no corresponding external injuries. It was in these circumstances, the Trial Court acquitted the accused. On appeal against acquittal the High Court convicted the accused, against which the matter went up to the Apex Court and the Court relying upon the medical evidence held that it cannot be said that the view of the Trial Court is not reasonable. (12). Now remains challenge to the conviction of appellants Asharam, Bharat Lal, Hanuman, Harphool, Phool Karan and Moolya for offence under Sections 326, 324, 148 and 149 IPC. As stated above, there are four injured eye witnesses, namely PW3 Gauri Shanker, PW9 Daulter Ram, PW13 Mst. Kamla and PW16 Rambilas. Mst. PW18 Mst. Lata is not an injured but she was present at the scene and has witnessed the incident. A glance at the evidence of these eye witnesses clearly reflects that the accused appellants were the members of unlawful assembly and participated in beating. They came together, duly armed with weapons, gave beating to the injured and the deceased and left the place together. The evidence of eye witnesses clearly shows that Phool Karan inflicted grievous injury by sharp weapon on the head of Daulat, which resulted in fracture of parietal bone, while appellant Asha Ram inflicted grievous injury by sharp weapon on face of Ram Vilas which resulted in fracture of maxilla bone and Harphool inflicted simple injury by sharp weapon on the left hand of Ram Kalyan. PW1 Dr. M.L. Kawant and PW2 Dr. Abdul Ajij Kagji who x- rayed the injured and found fractures have corroborated the evidence of eye witnesses in respect of the injuries caused to the injured. In this view of the matter, the learned Trial Court has rightly held the accused appellants responsible for their participation in commission of crime in the manner stated by he eye witnesses and supported by medical evidence. hence their conviction for offence under Sections 326, 324, 148 and 149 IPC cannot be interfered with and is liable to be maintained. (13). hence their conviction for offence under Sections 326, 324, 148 and 149 IPC cannot be interfered with and is liable to be maintained. (13). So far as conviction of these six appellants for offence under Section 325 IPC is concerned, suffice it to observe that their conviction cannot be sustained and is liable to be set aside. Considering the statements of eye witnesses, we find that there is nothing in the evidence to show as to which of the appellants caused injuries on the next of injured Mool Chand. Except that fracture of clavicle bone of Mool Chand was found in medical examination. That apart, injured Mool Chand himself has not been examined in evidence. For the reasons therefore, all the appellants deserve to be acquitted of the charge under Section 325 IPC. (14). For the reasons, we dispose off the instant appeal in the following terms:– 1. We acquit appellants Mahendra, Babu Lal, Ratan Lal, Mool Chand Son of harji, Sheoji and Murari of the charges under Sections 148, 302, 302/149, 325 and 325/149 IPC. These appellants are on bail, they need not to surrender and their bail bonds stand discharged. 2. We partly allow the appeal of appellants Asha Ram, Bharat Lal, Hanuman, Harphool, Moolya S/o Rattiram and Phool Karan and acquit them of the charges under Sections 302, 302/149, 325 and 325/149 but we (i) convict appellant Asharam under Section 326 IPC and sentence him to suffer rigorous imprisonment for a period of four years and to pay a fine of Rs. 1000/-. In default, to further suffer simple imprisonment for three months. Appellant Asharam is also convicted for offence under Section 324/149 IPC and sentenced to suffer simple imprisonment for one year and to pay a fine of Rs. 500/-. In default, to further suffer simple imprisonment for one month. (ii) convict appellant Bharat Lal under Section 326/149 IPC and sentence him to suffer rigorous imprisonment for a period of four years and to pay a fine of Rs. 1000/-. In default to further suffer simple imprisonment for three months. Appellant Bharat Lal is also convicted for offence under Section 324/149 IPC and sentenced to suffer simple imprisonment for one year and to pay a fine of Rs. 500/-. In default to further suffer simple imprisonment for one month. 1000/-. In default to further suffer simple imprisonment for three months. Appellant Bharat Lal is also convicted for offence under Section 324/149 IPC and sentenced to suffer simple imprisonment for one year and to pay a fine of Rs. 500/-. In default to further suffer simple imprisonment for one month. (iii) convict appellant hanuman under Section 326/149 IPC and sentence to suffer rigorous imprisonment for a period of four years and to pay a fine of Rs. 1000/-. In default to further suffer simple imprisonment for three months. Appellant Hanuman is also convicted for offence under Section 324/149 IPC and sentenced to suffer simple imprisonment for one year and to pay a fine of Rs. 500/-. In default, to further suffer simple imprisonment for one month. (iv) convict appellant Harphool under Section 326/149 IPC and sentence to suffer rigorous imprisonment for a period of four years and to pay a fine of Rs. 1000/-. In default, to further suffer simple imprisonment for three months. Appellant Harphool is also convicted for offence under Section 324 IPC and sentenced to suffer simple imprisonment for one year and to pay a fine of Rs. 500/-. In default, to further suffer simple imprisonment for one month. (v) convict appellant Moolya Son of Ratti Ram under Section 326/149 IPC and sentence to suffer rigorous imprisonment for a period of four years and to pay a fine of Rs. 1000/-. In default, to further suffer simple imprisonment for three months. Appellant Moolya is also convicted for offence under Section 324/149 IPC and sentenced to suffer simple imprisonment for one year and to pay a fine of Rs. 500/-. In default of fine, to further suffer simple imprisonment for one month. (vi) convict appellant Phool Karan under Section 326 IPC and sentence to suffer rigorous imprisonment for a period of four years and to pay a fine of Rs. 1000/-. In default, to further suffer simple imprisonment for three months. Appellant Phool Karan is also convicted for to suffer simple imprisonment for one year and to pay a fine of Rs. 500/-. In default, to further suffer simple imprisonment for one month. (vii) also convict appellants Asha Ram, Bharat Lal, Hanuman, Harphool, Moolya S/o Ratti Ram and Phool Karan for offence under Section 148 IPC and sentence to suffer simple imprisonment for one year and to pay a fine of Rs. 500/- each. 500/-. In default, to further suffer simple imprisonment for one month. (vii) also convict appellants Asha Ram, Bharat Lal, Hanuman, Harphool, Moolya S/o Ratti Ram and Phool Karan for offence under Section 148 IPC and sentence to suffer simple imprisonment for one year and to pay a fine of Rs. 500/- each. In default, to further suffer simple imprisonment for one month. (viii) All the substantive sentences shall run concurrently. (ix) Appellants Asharam, Bharat Lal, Hanuman and harphool have already undergone sentence, therefore, they shall be set at liberty forthwith if they are not required to be detained in any other case. Appellants Moolya Son of Ratti Ram and Phool Karan, who are on bail, shall be taken in custody forthwith to serve out the sentence imposed upon them. (15). Accordingly, the impugned judgment of the learned Trial Court stands modified as indicated herein above.