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2010 DIGILAW 603 (RAJ)

State of Rajasthan v. Harlal

2010-03-16

MEENA V.GOMBER, NARENDRA KUMAR JAIN

body2010
Hon'ble JAIN, J.—Heard learned counsel for the parties. 2. Both the appeals are directed against the common judgment and order dated 9th December, 1981 passed by the learned Sessions Judge, Sikar, in Sessions Case No. 11/1981 therefore, both these appeals are being disposed of by this common judgment. 3. Briefly stated the facts of the appeals are that written report Ex.P. 4 was lodged by Richpal S/o Hardeva Ram PW.3 at Police Station Raghunathgarh in respect of death of his wife Smt. Dadki due to injuries alleged to have been inflicted by accused Har Lal by knife. FIR No. 112/1980 (Ex.P. 5) was registered under Sections 302, 323, 148 and 149 IPC. Concerned police commenced investigation and arrested five accused persons. After completion of investigation the police filed challan against five accused persons namely, Chandra Ram S/o Hanuman, Bhagwan Singh S/o Hardeva Ram, Mohini W/o Bhagwan Singh, Har Lal S/o Chandra and Bhagwani W/o Chandra Ram. The accused were committed for trial to the court of Sessions Judge, Sikar where charges against accused Har Lal for offences under Sections 148, 302 and 324 IPC and against remaining accused persons for the offence under Sections 302/149, 324/149 and 147 IPC were readover. They denied the charges and claimed trial. The prosecution, in support of its case, examined 8 witnesses and also produced documentary evidence. Thereafter the statements of the accused persons were recorded under Section 313 Cr.P.C. In defence, statements of three witnesses were recorded. Learned trial court, after considering the entire record as well as the submissions of counsel for both the sides vide its judgment and order dated 9th December, 1981 acquitted all the accused persons from the charges under Sections 302, 302/149, 148 and 324/149 IPC but convicted accused Harlal for offences under Sections 304 Part II and 324 IPC and sentenced him to undergo rigorous imprisonment for seven years and rigorous imprisonment for one year respectively. Being aggrieved with the judgment of conviction and order of sentence, accused Har Lal has preferred S.B. Criminal Appeal No. 9/1982 and being aggrieved with the order of acquittal of the accused persons from the offences under Section 302, 302/149 and 324/149 IPC, the State filed an application for leave to appeal. Being aggrieved with the judgment of conviction and order of sentence, accused Har Lal has preferred S.B. Criminal Appeal No. 9/1982 and being aggrieved with the order of acquittal of the accused persons from the offences under Section 302, 302/149 and 324/149 IPC, the State filed an application for leave to appeal. This Court, vide order dated 30th August, 1982 refused leave against accused persons namely, Chandra Ram, Bhagwan Singh, Smt. Mohini and Smt. Bhagwani but granted leave to appeal only against accused Har Lal. Therefore, the State appeal was preferred against accused Har Lal only. 4. Learned Public Prosecutor has contended that this is a case of eye witnesses who stated before the trial Court that accused Har Lal inflicted a knife blow on the person of deceased Smt. Dadki and looking to the facts and circumstances of the case it was an intentional act of accused Har Lal, therefore, the trial Court committed an illegality in acquitting him from the charge under Section 302 IPC. He also referred to the statements of eye witnesses namely, Kesa Ram PW. 4, Mohan PW.5, Arjun PW.6 and Mahadev PW.7. However, during the course of arguments he could not point out any illegality or perversity in the finding of the learned trial Court to the effect that as per prosecution case the incident took place all of a sudden and that deceased Smt. Dadki was not present at the place of occurrence when quarrel started. She came later in rescue of injured Mohan PW.5 and Mahadev PW.7 and when she intervened for rescue an injury was inflicted on her person by accused Har Lal. His argument, now was that looking to the gravity of the offence maximum sentence of 10 years for offence U/s. 304 Part II IPC should have been awarded and that this was an illegality committed by Trial Court by passing a sentence of rigorous imprisonment of 7 years against Har Lal. 5. On the other hand, learned counsel for accused Harlal submitted that the statements of the prosecution witnesses were contrary to the written report as well as the chalked FIR. The recovery of knife at the instance of accused Har Lal had also not been proved. He referred to the statement of Bhura Ram DW.1 who stated that no knife was recovered in his presence. The recovery of knife at the instance of accused Har Lal had also not been proved. He referred to the statement of Bhura Ram DW.1 who stated that no knife was recovered in his presence. According to him when the signatory of recovery memo say no weapon was recovered before him then the recovery cannot be said to be proved. Therefore, the statements of the prosecution witnesses are neither corroborated with the recovery nor the contents of the written report and thus, it was a case wherein the accused should have been given the benefit of doubt. Learned trial Court committed an illegality in convicting accused Har Lal under Section 304 Part II IPC. However, during the course of arguments, he frankly and fairly conceded that looking to the facts and circumstances of the case, the findings of the learned trial Court in respect of offence under Section 304 Part II IPC are proper and that the case of accused Har Lal be considered for reduction of sentence from seven years' rigorous imprisonment to the period of imprisonment of 16 months already undergone by him. 6. We have considered the submissions of learned Public Prosecutor and the counsel for the accused and minutely scanned the impugned judgment as well as the record of the trial Court. 7. Richpal PW.3, husband of deceased Dadki lodged the report Ex. P. 4 and on that basis FIR Ex. P. 5 was chalked. Prosecution examined 4 eye-witnesses, out of which two witnesses namely Mohan PW.5 and Mahadev PW. 7 were injured eye-witnesses and Kesa Ram PW. 4 and Arjun PW. 6 were independent witnesses. Learned counsel for both the parties referred to the statements of all the four eye witnesses during the course of arguments and we have also examined their statements in detail in the light of the findings of the learned trial Court. After considering the same we are of the firm view that it is a case wherein the deceased Smt. Dadki was not present at the place of occurrence when the quarrel started in between Mahadev PW. 7 and accused Harlal and she came later and intervened to rescue. It was at that time that the accused Harlal inflicted injury by knife on her person. From the post mortem report Ex. 7 and accused Harlal and she came later and intervened to rescue. It was at that time that the accused Harlal inflicted injury by knife on her person. From the post mortem report Ex. P.3 it is clear that deceased Smt. Dadki sustained three injuries on her person out of which injury No. 3 was on her neck and as per the statements of PW.2 Dr. B.P. Jangid, injury No. 3 was sufficient to cause death in the ordinary course of nature. From the close scrutiny of statements of eye-witnesses, we find that there was no intention on the part of the accused to inflict the said injury on the person of the deceased but in view of the fact that weapon used by him was knife, it can not be denied that certainly he had knowledge that the said injury could have resulted in the death of the deceased. In these circumstances we find that finding of the trial Court in this regard is perfectly rights and justified and is based on proper appreciation of evidence. Learned counsel for both the parties could not point out any illegality or perversity in the finding of the learned trial Court in this regard. In these circumstances we are of the view that learned counsel for accused Har Lal rightly did not challenge the order of conviction of accused Har Lal under Section 304 Part II IPC. Learned trial Court was fully justified in acquitting the accused persons for the offences under Section 148 IPC. Since, this Court, vide order dated 30th August, 1982 refused to grant leave against remaining four accused persons, therefore, we heard both the appeals only in respect of accused Harlal. It is also relevant to mention that accused Harlal has also been convicted under Section 324 IPC for causing injuries on the person of Mohan PW.5 and Mahadev PW.7. Both the injured persons were examined during trial of the case. Ex. P. 1 is the injury report of injured Mahadev according to which it is clear that he sustained three injuries. Both the injury reports have been proved by Dr. Brij Raj Singh PW.1. The injuries were not stated to be grievous in nature. Both the injured persons were examined during trial of the case. Ex. P. 1 is the injury report of injured Mahadev according to which it is clear that he sustained three injuries. Both the injury reports have been proved by Dr. Brij Raj Singh PW.1. The injuries were not stated to be grievous in nature. In these circumstances we are of the view that the learned trial Court rightly convicted accused Har Lal under Section 324 IPC with regard to the injuries sustained by injured Mohan PW.5 and Mahadev PW.7. 8. Now, we come to the question of sentence of imprisonment. The submission of the learned counsel for accused Har Lal is that he has already remained in jail for about a period of sixteen months and the incident took place 30 years ago. The accused is a family man who has already settled down in his village and during this period he has not committed any offence. Therefore, in these circumstances, the sentence of imprisonment of seven years' rigorous imprisonment awarded by the trial court for offence under Section 304 part II IPC be reduced to the period of sentence of imprisonment of sixteen months already undergone by him. The learned P.P. contended that looking to the facts and circumstances of the case the sentence of imprisonment awarded by the trial Court is justified and no interference in the same is called for. 9. We have considered the submissions of the learned counsel for the parties. 10. There is no dispute that the incident in the present case took place on 20th October, 1980, i.e. about 30 years ago. As per the memo of arrest Ex.P. 14 accused Harlal was of 21-1/2 years of age at the time of his arrest. The incident took place all of a sudden and as admitted by the prosecution witnesses themselves, there was no previous enmity between the parties. 11. Hon'ble Apex Court in Pooran Singh vs. State of U.P. ( AIR 1981 SC 1638 ) looking to the age of the accused i.e. 19 years at the time of the offence, reduced the sentence of imprisonment imposed under Section 304 part I IPC to the period of 18-1/2 months already undergone by him. The order of the Apex Court is reproduced as under:- "We have heard Mr. Garg, learned counsel for the appellant and Mr. The order of the Apex Court is reproduced as under:- "We have heard Mr. Garg, learned counsel for the appellant and Mr. O.P. Rana, learned counsel for the respondent State. Taking into consideration all the circumstances of the case, including the fact that at the time of occurrence the appellant was a raw youth of 19 years, we, while maintaining the conviction of the appellant under Section 304, Part I, I.P.C., reduced his sentence to imprisonment already undergone, which is stated to be about 18-1/2 months. Subject to this reduction in the sentence, the appeal is dismissed. The bail bond of the appellant is discharged." 12. In the matter of Kuldeep Singh vs. State of Haryana (1996 Cri. L.J. 1884 (SC)}, Hon'ble Apex Court reduced the sentence of imprisonment from four years rigorous imprisonment to the period of two years rigorous imprisonment already undergone by the accused for offence under Section 304 Part II IPC. 13. Similarly in the matter of State of Punjab vs. Mohinder Singh {(1993 Cri.L.J. 3903 (SC)}, Hon'ble Apex Court considered the matter wherein the accused was convicted under Section 304 Part II IPC and was awarded five years' rigorous imprisonment and was also imposed a fine of Rs. 2,000/-. However, in view of the fact that the occurrence took place in the year 1975 and having regard to the long lapse of time, Hon'ble Apex Court did not think it proper to send the accused to jail. In that case the accused had only served a sentence of 2-1/2 month's which although was observed to be quite inadequate, still Hon'ble Apex Court considered the fact of long lapse of time to be a strong fact in favour of the accused appellant and the same was reduced to already served sentence of 2-1/2 month's. Although the amount of fine of Rs. 2,000/- was enhanced to an additional fine of Rs. 10,000/- to be paid to the family of the deceased. In para 6 of the said judgment it was held:- "6.....Therefore, "now turning to the question of sentence we find that the accused had hardly served 2-1/2 months in jail which is grossly inadequate. However, having regard to the fact that the occurrence took place on 5th August, 1975 and having regard to the long lapse of time we do not think that accused should be sent to jail... deceased." 14. However, having regard to the fact that the occurrence took place on 5th August, 1975 and having regard to the long lapse of time we do not think that accused should be sent to jail... deceased." 14. Recently, in the matter of Md. Monir Alam vs. State of Bihar ( AIR 2010 SC 698 ) Hon'ble Apex Court considering the specific circumstances that the accused had acquired a Doctorate degree during the pendency of the case and got a prestigious employment of Senior Assistant Professor in the Department Senior Assistant Professor in the Department of Strategic and Regional Studies, University of Jummu, even released him on probation under Section 4 of the Probation of Offenders Act, 1958 for offence under Sections 304 Part II and 323 IPC. 15. Offence under Section 304 Part II IPC is punishable with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine or with both. No minimum sentence has been prescribed. Admittedly, the offence relates to the year 1980 and the matter is 30 years old and the accused appellant is on bail. He was arrested on 3rd November, 1980 and was convicted by the trial Court on 9th December, 1981. He was not released on bail during trial of the case but after the appeal was filed, this Court vide its order dated 18th February, 1982 granted bail to him. From the above it is clear that he has already remained in jail for about 15-1/2 months. The accused was admittedly around 21-1/2 years of age at the time of the occurrence. In these circumstances, in particular because of lapse of three decades from the date of occurrence and the age of the accused at that time, we are of the view that ends of justice will meet in case the sentence of imprisonment awarded by the trial Court be reduced to the period of imprisonment already undergone by the accused. 16. Consequently, the State appeal (D.B. Criminal Appeal No. 358/1982) is, dismissed and the appeal of accused Harlal (S.B. Criminal Appeal No. 9/198) is partly allowed. 16. Consequently, the State appeal (D.B. Criminal Appeal No. 358/1982) is, dismissed and the appeal of accused Harlal (S.B. Criminal Appeal No. 9/198) is partly allowed. The Conviction of appellant Harlal under Sections 304 Part II and conviction and sentence under Section 324 IPC are maintained but the sentences of imprisonment of seven years rigorous imprisonment awarded by the trial Court under Section 304 Part II IPC is reduced to the period of imprisonment already undergone by him. 17. The accused is on bail and need not to surrender. His bail bonds are cancelled.