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2012 DIGILAW 145 (RAJ)

Dhania @ Dhannaram v. State of Rajasthan

2012-01-12

GOVIND MATHUR, NARENDRA KUMAR JAIN II

body2012
JUDGMENT 1. - This appeal is preferred to challenge the judgment and order dated 2.12.2004 passed by learned Additional Sessions Judge (Fast Track), Jalore convicting the accused appellant for the offences punishable under Sections 302, 323 and 341 Indian Penal Code and sentencing as under : Under Section 302 I.P.C. - Life imprisonment with a fine of Rs. 3000/- and in default of payment of fine to further undergo one year's additional simple imprisonment. Under Section 323 I.P.C. - Six months rigorous imprisonment with a fine of Rs. 250/- and in default of payment of fine further to undergo 15 days additional simple imprisonment. Under Section 341 I.P.C. - 15 days simple imprisonment with a fine of Rs. 50/- and in default of payment of fine three days additional simple imprisonment. 2. In brief, facts of the case are that on 28.7.2004 at about 1.30 AM a written report (Ex.P-7) was submitted at Police Station Ahore by Visaram (PW-7) with assertion that the wife of his nephew went to the house of Rajputs for work, however, looking to the delay in returning here husband Sonia went to bring her back. Accused Dhania intercepted him on way and started quarrelling. Aadaram (deceased) then intervened in the matter and asked reasons for such quarrel. Dhania, who was under intoxication, gave a stone blow on the head of Aadaram, consequent thereto he fell down. Accused Dhania immediately fled from the spot. Looking to the serious nature of the injury injured Aadaram was taken to hospital at Takhatgarh wherefrom he was referred to Jodhpur for further treatment. 3. On basis of the information aforesaid a case was lodged and investigation was initiated for the offences punishable under Sections 341 and 323 Indian Penal Code. On 5.8.2004, while undergoing treatment at Mahatma Gandhi Hospital, Aadaram died, thus, investigation for an offence punishable under Section 302 Indian Penal Code too was initiated. After completing investigation a charge sheet was filed before the competent Court and the matter was committed to the Court of Sessions. The trial Court framed the charges for commission of the offences under Sections 302, 323 and 341 Indian Penal Code but the same were denied and trial was demanded. 4. The prosecution during the course of trial supported its case with the aid of 15 witnesses out of whom PW-4 Anwarlal and PW-7 Visaram were cited as eye-witnesses. The trial Court framed the charges for commission of the offences under Sections 302, 323 and 341 Indian Penal Code but the same were denied and trial was demanded. 4. The prosecution during the course of trial supported its case with the aid of 15 witnesses out of whom PW-4 Anwarlal and PW-7 Visaram were cited as eye-witnesses. The prosecution also supported its case with the aid of 22 documents. While availing opportunity to explain the adverse circumstances available in the prosecution evidence the accused termed entire evidence as false and stated that he has been falsely implicated in the case. In defence he got exhibited documents Ex.D-1, Ex.D-2 and Ex.D-3. 5. Learned trial Court after examining the entire evidence available on record held the accused appellant guilty for the charges alleged and passed the order of conviction and sentenced accordingly. 6. In appeal, it is submitted by counsel for the appellant that even by accepting the prosecution case as it is, the offence committed by the accused appellant does not travel beyond the offence described under Section 304 part-II Indian Penal Code. It is asserted that the accused was at all intending to kill deceased Aadaram and as such his conviction under Section 302 Indian Penal Code is erroneous. 7. While opposing, the argument advanced and defending the judgment impugned. It is submitted by learned Public Prosecutor that the accused gave a severe stone blow on head of the deceased that ultimately resulted into death of Aadaram, as such the intention of killing is apparent. 8. Heard counsel for the parties. 9. As per the medical evidence available on record the person of deceased Aadaram was having following ante-mortem injuries : (1) Stitched lacerated wound 7.5cm, long on left fronto parietal region. (2) Abrasion 3cm x 0.5cm on right side of forehead. (3) Abrasion 0.5cm x 0.2cm on left side of forehead. (4) Abrasion 1cm x 0.5cm on left elbow part. (5) Abrasion 2cm x 0.5cm on left shoulder sup surface. 10. Out of the five injuries referred above the fatal injury is injury No. 1 and that is cause of death in opinion of the doctor who conducted autopsy on 5.8.2004. In view of the medical evidence available, there is no doubt about homicidal death of Aadaram. 11. (5) Abrasion 2cm x 0.5cm on left shoulder sup surface. 10. Out of the five injuries referred above the fatal injury is injury No. 1 and that is cause of death in opinion of the doctor who conducted autopsy on 5.8.2004. In view of the medical evidence available, there is no doubt about homicidal death of Aadaram. 11. The only question requires consideration is that whether the present appellant was involved in the act that ultimately resulted into death of Aadaram and if so, then whether that act comes within the purview of the term "murder" as defined under Section 300 Indian Penal Code? 12. The case of the prosecution is mainly based upon the statements of PW-4 Anwarlal and (PW-4) (sic PW-7) Visharam. The prosecution has also supported its case with the aid of the stone that was recovered at the instance of the accused and that is having blood stains having blood group "A" matching with the blood group of deceased. 13. PW-4 Anwarlal in quite unambiguous terms stated before the Court that on 27.7.2004 at about 9.30 PM when Sonia @ Sonaram was going towards the house of Rajputs, accused Dhania intercepted his away and started quarrelling with him. On intervention by Aadaram accused gave a stone blow and then fled from the spot. As per this witness Aadaram then was taken to hospital and after providing first aid he was referred to Jodhpur for further treatment. At Jodhpur on 5.8.2004 Aadaram died. Same is the position with the statements given by other eye-witness viz. Visaram. 14. In view of the statements of the eye-witnesses PW-4 and PW-7, there is no doubt about involvement of the accused appellant in the crime in question. However, there is no evidence available on record to establish that he was Finding to kill Aadaram by giving the stone blow. As a matter of fact the used was quarelling with Sonia @ Sonaram and he gave a stone blow to adaram being annoyed with his intervention in the matter. As such, his act is not an offence as described under Section 300 Indian Penal Code. The act of the appellant comes within the third exception given under Section 300 Indian Penal Code. Being coming within the third exception, the offence committed is in the nature of the offence enumerated under part-II of Section 304 Indian Penal Code. As such, his act is not an offence as described under Section 300 Indian Penal Code. The act of the appellant comes within the third exception given under Section 300 Indian Penal Code. Being coming within the third exception, the offence committed is in the nature of the offence enumerated under part-II of Section 304 Indian Penal Code. The trial Court, thus, committed an error while convicting the accused appellant for an offence punishable under Section 302 Indian Penal Code. So far as the conviction under Sections 323 and 341 Indian Penal Code is concerned, that has been sufficiently established by the prosecution on basis of the statements of the eye-witnesses PW-4 and PW-7. 15. In view of the discussions made above, this appeal is allowed in part. The conviction of the accused appellant for the offences punishable under Sections 323 and 341 Indian Penal Code is maintained. However, the conviction and sentence for the offence punishable under Section 302 Indian Penal Code is set aside and the accused appellant is convicted for an offence punishable under Section 304 part- Indian Penal Code. For the offence aforesaid he is sentenced for the term which was already been undergone by him with a fine of Rs. 1000/-. He shall be liable to undergo one months's simple imprisonment in the event of default in payment of fine. He shall be released forthwith from the State custody, if not otherwise required in any other case.Appeal partly allowed. *******