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2006 DIGILAW 561 (RAJ)

Ram Dev v. State of Rajasthan

2006-02-17

H.R.PANWAR

body2006
Judgment H.R. Panwar, J.-This criminal jail appeal is directed against the Judgment and order dated 07.06.2003 passed by Additional Sessions Judge, Gulabpura camp Shahpura, district Bhilwara (for short the trial Court hereinafter) in Sessions Case No. 19/2002 whereby the trial Court convicted the appellant for the offence under Section 304-II, IPC and sentenced him to undergo six years simple imprisonment and a fine of Rs. 1,000/-in default of payment of fine further to undergo three months simple imprisonment. Aggrieved by the Judgment and order impugned, the appellant has filed the instant appeal through jail. 2. I have heard learned amicus curiae for the appellant and public prosecutor for the respondent State. Perused the Judgment and order impugned and record of the trial Court. 3. At the very outset, learned amicus curiae appearing for the appellant, submits that the appellant does not challenge his conviction for the offence under Section 304-II, IPC, however, learned amicus curiae has confined his arguments only to the quantum of sentence awarded by the trial Court and submits that the appellant has already undergone the imprisonment of about four years and it was the first offence committed by him. Learned amicus curiae submits that the deceased and the appellant both were consuming liquor together and on a sudden provocation by the deceased while consuming liquor it is said that the appellant picked up a lathi and inflicted a single injury over the eye brow and, therefore, according to learned amicus curiae there being no previous enmity between the parties and occurrence took place on sudden provocation, the ends of justice would be met if the substantive sentence awarded to the appellant is reduced to the period of imprisonment already undergone by him. 4. Learned public prosecutor supported the Judgment and order impguned. 5. I have given my thoughtful consideration to the rival submissions made by the Counsel for the parties. 6. The appellant was put to trial on a first information report lodged by PW. 6 Jagdish on 03.03.2002 at 7.15 AM, with police station Jahajpur stating therein that on 02.03.2002 at about 11.00-11.30 P.M., he was informed by one Prabhulal that the appellant and deceased Bhanwarlal were drinking liquor and while drinking liquor, they started fighting each other and deceased Bhanwarlal suffered injuries by lathi. 6 Jagdish on 03.03.2002 at 7.15 AM, with police station Jahajpur stating therein that on 02.03.2002 at about 11.00-11.30 P.M., he was informed by one Prabhulal that the appellant and deceased Bhanwarlal were drinking liquor and while drinking liquor, they started fighting each other and deceased Bhanwarlal suffered injuries by lathi. On this report, a crime report for the offence under Section 302, IPC was registered against the appellant and the police ensued investigation. After usual investigation, a challan was filed against the appellant for the offence under Section 302, IPC. The prosecution adduced evidence by producing as many as 19 witnesses and documents Exhibit P-1 to Exhibit P-23-A. The appellant made statement under Section 313 of the Code and denied the allegation. It appears from the statement of the appellant as also from the evidence on record that the deceased and the appellant were the brothers. 7. PW. 11 Prabhulal who alleged to have informed PW. 6 Jagdish, the complainant, that the appellant inflicted injuries to deceased, stated that he heard that the appellant gave a lathi blow to the deceased; however, he categorically admitted that he was not present at the place of occurrence and did not see anything, thus, he is not an eye witness to the occurrence. 8. PW. 3 Ranglal Meena is a witness who soon after occurrence reached at the place of occurrence. He stated that on hearing noise, he went on the place of occurrence and saw the dead body of the deceased and the appellant was present there. However, in cross-examination he stated that deceased Bhura and appellant both being the brothers were fighting and causing injuries to each other. However, he stated that fight between them came to an end before he reached the place of occurrence. The deceased had an injury on right side of his skull and bleeding from mouth. 9. PW. 4 Ratiram also stated that there was a fight between two brothers in the night and deceased had an injury on his skull by lathi and was bleeding from mouth and nose etc. He is also not an eye-witness to the occurrence. 10. PW. 5 Badri Lal also stated that on hearing the noise, he went to the place of occurrence and noticed that deceased Bhura was lying. He was informed that the appellant inflicted injury to him. The other witness PW. He is also not an eye-witness to the occurrence. 10. PW. 5 Badri Lal also stated that on hearing the noise, he went to the place of occurrence and noticed that deceased Bhura was lying. He was informed that the appellant inflicted injury to him. The other witness PW. 6 Jagdish, author of the FIR is also not a witness to the occurrence. 11. PW. 7 Dr. R.S. Goyal has proved the post-mortem report Exhibit P-9 and FSL report Exhibit P-10. From the FSL report Exhibit P-10 it appears that the viscera of the deceased was sent to the Forensic Science Laboratory for chemical analysis and on chemical examination the viscera gave positive tests for presence of Ethyl Alcohol. Report of Forensic Science Laboratory corroborates the fact that the deceased and the appellant were consuming liquor together. 12. According to PW. 8 Dr. P.C. Tungaria, member of Medical Board who conducted the autopsy of the deceased stated that the deceased suffered injury on the right side of the skull, contusion near the right eye and abrasion on elbow etc. 13. The trial Court on the basis of last seen evidence as also recovery of lathi, convicted the appellant. 14. From the statements of the witnesses noticed above, it has been established that the deceased and the appellant were drinking liquor together and it appears that on sudden provocation some altercation took place between them and the injuries alleged to have been inflicted by the appellant. Thus, from the evidence on record, it cannot be said that the appellant intended to cause death of the deceased; however, it can reasonably be inferred that the appellant had knowledge that the injury on the vital part of the body of the deceased would cause his death and, therefore, in my view, learned amicus curiae appearing for the appellant rightly did not challenge the conviction of the appellant. 15. So far as the quantum of sentence is concerned, the occurrence took place while the deceased and the appellant were sitting together being real brothers and consuming liquor which is evident from the post-mortem report, FSL report, Exhibit P-10 and the statements of PW . 8 and PW . 10, and the occurrence took place on sudden provocation and on the spur of moment. The appellant has already undergone imprisonment of three years 11 months and 17 days i.e., almost four years. 8 and PW . 10, and the occurrence took place on sudden provocation and on the spur of moment. The appellant has already undergone imprisonment of three years 11 months and 17 days i.e., almost four years. In the circumstances therefore, in my view the ends of justice would be met if the sentence of imprisonment awarded to the appellant is reduced to the period of imprisonment already undergone by him and sentence of fine to Rs. 500/-. 16. Consequently, the appeal is partly allowed. While maintaining the conviction of appellant Ram Dev S/o Cheetar for the offence under Section 304-II, IPC, the substantive sentence of imprisonment awarded to the appellant is reduced to the period of imprisonment already undergone by him and sentence of fine to Rs. 500/-, in default of payment of fine further to undergo fifteen days simple imprisonment. The appellant is in jail. He be set at liberty if not required in any other case on deposit of fine.