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2006 DIGILAW 78 (RAJ)

Ramdayal v. State of Rajasthan

2006-01-05

KHEM CHAND SHARMA, SHIV KUMAR SHARMA

body2006
Honble K.C. SHARMA, J.–The above titled appeal by 4 appellants, namely Ramdayal, Ram Singh, Dalu @ Dalchand and Bhag Chand arises out of the judgment and order dated 3.9.2002 passed by the learned Additional Sessions Judge, Laxmangarh, Alwar whereby the learned Judge has convicted and sentenced the appellants in the following manner: Under Section 302/34 IPC To undergo rigorous imprisonment for life with a fine of Rs. 10000/-. Under Section 323/34 IPC To undergo rigorous imprisonment for one year with a fine of Rs. 2500/- each. Under Section 341 IPC To undergo simple imprisonment for one month. (2) On 19.4.99 at 8.00 AM, Ram Dayal S/o Banshi Lal lodged a written report, Ex. P. 19 at Police Station, Kathumar, alleging therein that at 7.00 AM he left his house for collecting gunny bags from Chunnilal Punjabi of Indira Colony. When he reached near the house of Hareti Jatav, accused Ramdayal, Dalu, Bhag Chand and Ram Singh met him. Dal Chand and Bhag Chand had Farsas in their hands, while Ram Singh had a lathi and Ramdayal had a Ballam. All the accused encircled him near the house of Hareti. He then stated that some altercation had taken place between him and the accused in the Panchayat meeting convened last night and that being the reason, the accused encircled him and started belabouring him with Farsas and Ballam. He stated that accused Bhag Chand struck first blow on his head, as a result of which he fell down on the ground and thereafter all the accused opened attack on him with Farsas and Ballam with an intention to kill him, which resulted in causing injuries on his head, hand and legs. The accused had also threatened to shoot him. Dulli S/o Chuttan, Pilli S/o Kadera and Ram Swaroop S/o Chuttan came there and saved him. (3). On the basis of aforesaid written report, the Police registered a case for offence under Sections 307, 341 and 323 IPC vide FIR Ex. P. 31 (PW. 2), and proceeded with the investigation. In the course of treatment, injured Ramdayal succumbed to his injuries and the police added Section 302 IPC. (4). Having completed investigation, police submitted a charge sheet against the accused persons. The learned trial Judge, on the basis of evidence and material on recorded framed the charges against the accused. The accused pleaded not guilty and claimed trial. In the course of treatment, injured Ramdayal succumbed to his injuries and the police added Section 302 IPC. (4). Having completed investigation, police submitted a charge sheet against the accused persons. The learned trial Judge, on the basis of evidence and material on recorded framed the charges against the accused. The accused pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 18 witnesses and got exhibited certain documents. Thereafter the accused were examined under Section 313 Cr.P.C. At the conclusion of trial, the learned trial Judge convicted and sentenced the accused appellants in the manner stated hereinabove. Hence this appeal. (5). We have heard learned counsel for the parties and have gone through the impugned judgment and the evidence and material on record. (6). In assailing the conviction, the learned counsel for the appellants have strenuously contended that learned trial Court has committed serious error in holding the appellants guilty of the offence charged with. He submitted that the prosecution has not been able to bring home guilt against the appellants beyond reasonable doubt. Referring the medical evidence, Mr. Biri Singh contended that cause of death of deceased was not the injuries allegedly caused by the accused. The deceased died of excessive bleeding as a consequence of rapture of spleen. He submitted that there were 13 injuries on the person of deceased and none of them, as per the medical evidence, was sufficient to cause death in the ordinary course of nature. Learned counsel has taken s to the statement of PW.8 Dr. Sriram Meena, wherein he has categorically deposed that none of these 13 injuries was sufficient in the ordinary course of nature to cause death. Even, according to the doctor, injuries No. 2 to 13 were not on vital part of the body. Learned counsel then submitted that not only the entire prosecution witnesses are highly interested, they have contradicted each other and do not find corroboration with independent witnesses. In this back ground, learned counsel contended that appellants are entitled to be extended the benefit of doubt. (7). Learned counsel then submitted that not only the entire prosecution witnesses are highly interested, they have contradicted each other and do not find corroboration with independent witnesses. In this back ground, learned counsel contended that appellants are entitled to be extended the benefit of doubt. (7). Per contra, learned Public Prosecutor and counsel for the complainant have fully supported the findings arrived at by the learned trial Court and have contended that the learned trial Judge has appreciated the prosecution evidence in true perspective and has rightly convicted and sentenced the accused appellants and therefore, the impugned judgment deserves to be maintained. (8). We have considered the rival submissions. To appreciate the rival submissions, we feel it appropriate to refer the relevant evidence so as to adjudge the truthfulness of the witnesses. (9). PW. 5 Ram Swaroop, an eye witness of the incident has deposed that appellant Ram Dayal inflicted a Ballam blow on the middle of leg of deceased, while appellant Ram Singh inflicted lathi blows on the hands and back of deceased. Appellant Dalchand struck Farsa blow on the head by its reverse side and Bagh Chand also struck Farsa blow on the shoulders from its reverse side. However, the injury report, Ex. P.14 does not disclose any injury on the shoulder of deceased. PW.10 Dulli another eye witness has deposed that he saw appellant Ramdayal S/o Ghisa thrusting Ballam in the left leg of deceased Ram Dayal while he was lying on the ground. Accused Ram Singh struck a lathi blow and other inflicted farsa blows. He then stated that deceased sustained injury on his head by farsa. He also sustained injury on his right hand. In cross examination, this witness has stated that Dalchand inflicted farsa blow from its front side. PW.1 Hari Ram and PW. 4 Chunnilal are also stated to have witnessed the incident. Undoubtedly, both these eye witnesses have deposed that appellants inflicted injuries on the person of deceased but they have not been able to state as to which of the appellant inflicted which injury on which part of the body of deceased. PW. 9 Pilli and PW. 14 Saheed were also examined as eye witnesses of the incident but they have turned hostile and have not supported the prosecution case. (10). Now comes the medical evidence. The injury report, Ex. P.14 and the post mortem report, Ex. PW. 9 Pilli and PW. 14 Saheed were also examined as eye witnesses of the incident but they have turned hostile and have not supported the prosecution case. (10). Now comes the medical evidence. The injury report, Ex. P.14 and the post mortem report, Ex. P. 15 indicate that there were as many as 13 injuries on the person of deceased, which may be stated below: 1. stiched wound of 7 cm in size on Rt. Parietal area, above the ear. 2. stiched wound 2.5 cm on right index finger & distal phalanx on dorsum site with multiple fracture. 3. stiched wound at right tivial tuberosity with fracture of upper part of tibia of size 3 cm. 4. stiched wound 5 cm on medial aspect of right mid leg. 5. stiched wound with multiple fractures of bone of distak phalanx of third toe. 6. swelling defused on left dorsum foot 7. swelling defused with fracture on lower 1/3rd of left forearm. 8. swelling with fracture on middle 1/3rd of dorsum of left forearm. 9. stiched wound 3 cm on left arm. 10. stiched wound 1 cm on right medial aspect of lower 1/3rd of leg. 11. stiched wound with multiple fracture of right tivial (left tuberosity). 12. defused swelling with fracture of lower 1/3rd of right ulna bone. 13. stiched wound with defused swelling 5 cm on left mid leg medial aspect below the tivial tuberosity. (11). The medical evidence referred to above discloses that there were four stab wounds viz., on left knee, left arm, right leg and right knee. Injury No. 13 is stated to be lacerated wound of the size of 7 x 1 cm x bone deep on the right side of head, 9 cm above the ear. In the opinion of doctor, the cause of death was shock due to raputre of spleen. He has stated that injuries No. 1 to 13 were individually not sufficient in the ordinary course of nature to cause death of the deceased and that injury Nos. 2 to 13 were not on the vital part of the body. (12). In the opinion of doctor, the cause of death was shock due to raputre of spleen. He has stated that injuries No. 1 to 13 were individually not sufficient in the ordinary course of nature to cause death of the deceased and that injury Nos. 2 to 13 were not on the vital part of the body. (12). From what has been discussed above about the testimony of eye witnesses, we do not find an iota of evidence that appellants obstructed the deceased so as to prevent him from proceeding in the direction in which he had a right to proceed, inasmuch as the all eye witnesses who alleged to have been the incident have deposed that deceased was at the house of Hareti. The appellants reached there and belaboured the deceased. Therefore, no question of deceased having been obstructed so as to prevent him from proceeding in the direction in which he had a right to proceed does arise and hence none of the appellants could have been convicted for offence under Section 341 IPC. (13). So far as conviction of appellants under Section 302/34 IPC is concerned, suffice it to observe that prosecution has not been able to prove that appellants Dal Chand and Bhag Chand inflicted any injury on the person of deceased. PW.5 Ram Swaroop, an eye witness of the incident has stated that Dal Chand inflicted injury on the head of deceased by blunt side of Farsa and appellant Bhag Chand inflicted injury on the shoulder of deceased by Farsa using its blunt side. On the contrary, PW. 10 Dulli Chand categorically deposed that appellant Dal Chand inflicted injury on the head of deceased by sharp side of Farsa. However, the testimony of the eye witnesses does not find corroboration with medical evidence. Neither the medical evidence discloses any injury on the shoulder nor it discloses any incised wound on the head of deceased as deposed by PW.10 Dulli Chand. A glance at the injury report Ex. P. 14 makes it evidently clear that neither there was any injury on the shoulder nor there was any incised wound on the head of the deceased. The post mortem report also does not support the evidence of eye witnesses so far as infliction of injuries on shoulder and incised wound on the head of deceased. P. 14 makes it evidently clear that neither there was any injury on the shoulder nor there was any incised wound on the head of the deceased. The post mortem report also does not support the evidence of eye witnesses so far as infliction of injuries on shoulder and incised wound on the head of deceased. In this view of the matter, we are unable to find participation of appellants Dal Chand and Bhag Chand and therefore, their conviction under Section 302 read with Sec. 34 IPC cannot be sustained and is liable to be set aside. Further there is no evidence to prove that these two appellants shared common intention in voluntarily causing any injury on the person of deceased inasmuch as what has been deposed by the eye witnesses is short of corroboration by medical evidence and hence their conviction under Section 323/34 IPC also cannot be sustained. (14). As stated hereinabove, PW. 8 Dr. Sri Ram Meena has categorically deposed that none of the injuries on the person of deceased was on vital part of the body. He also deposed that injuries on the body of deceased were not sufficient to cause death in the ordinary course of nature. In his opinion the cause of death was shock due to rapture of spleen. That apart, the doctor did not notice any external or corresponding injury either on the chest or on the ribs. As per the report, Ex. P. 14, all the injuries caused to the deceased were either on legs or on hand. Thus, in the light of injuries found on the person of deceased, no intention or knowledge to cause death of the deceased can be attributed even to remaining two appellants, namely Ram Dayal and Ram Singh. For the reasons therefore, the conviction of these two appellants under Section 302/34 IPC also cannot be sustained. (15). Having held that conviction of the appellants under Sections 302/34 cannot be sustained, the question which now emerges for our consideration would be as to what offence, in the light of the evidence and material on record, is made out against the appellants Ramdayal and Ram Singh. To decide the question, we again divert to the evidence. (15). Having held that conviction of the appellants under Sections 302/34 cannot be sustained, the question which now emerges for our consideration would be as to what offence, in the light of the evidence and material on record, is made out against the appellants Ramdayal and Ram Singh. To decide the question, we again divert to the evidence. The eye witnesses have deposed that appellant Ram Singh inflicted lathi blow thereby causing injuries on the hand of deceased, while appellant Ram Dayal struck ballam, causing injuries on the legs of deceased, which resulted in fractures of hand and legs. It has come in evidence that when deceased came to the house of Hareti, appellants Ram Dayal and Ram Singh came there duly armed with weapons, simultaneously belaboured the deceased, caused injuries on his person and them left the place together, which shows that these two appellants had the common intention to beat the deceased and cause injuries to him by their respective weapons. Ram Singh caused injuries by lathi on the hand of deceased, while Ramdayal caused injuries by Ballam on the legs of deceased. Thus in our view, considering the evidence discussed above, the role played by Ram Singh and Ramdayal, the weapons used by them and the injuries caused to the deceased sharing their common intention, appellant Ram Singh is liable to be convicted for offence under Sections 325, 226/34 and 323/34 IPC while appellant Ramdayal is liable to be convicted for offence under Sections 326, 325/34 and 323/34 IPC. (16). For the reasons, we dispose of the instant appeal in the following terms: We allow the appeal of Dalu @ Dal Chand and Bhag Chand and acquit them of the charge under Sections 302/34, 323/34 and 341 IPC. They are on bail and need not surrender to their bail bounds. Their bail bonds are discharged. We partly allow the appeal of appellant Ram Dayal and acquit him of the charge under Sections 302/34 and 341 IPC. However, he is convicted for the offence under Sections 326, 325/34 and 323/34 IPC. Since appellant Ram Dayal has been in custody for a period of more than 6 years 9 months, ends of justice would be met in sentencing him to the period already undergone by him in the confinement. However, he is convicted for the offence under Sections 326, 325/34 and 323/34 IPC. Since appellant Ram Dayal has been in custody for a period of more than 6 years 9 months, ends of justice would be met in sentencing him to the period already undergone by him in the confinement. We partly allow the appeal of appellant Ram Singh and acquit him of the charge under Section 302/34 IPC and 341 IPC. However, he is convicted for the offence under Sections 326/34, 325 and 323/34 IPC. Since appellant Ram Singh has been in custody for a period of more than 6 years 9 months, ends of justice would be met in sentencing him to the period already undergone by him in confinement. Appellants Ram Dayal and Ram Singh are in jail and shall be set at liberty forthwith, if not required in another case. Impugned judgment of the trial Court is modified to the extent as indicated above.