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2012 DIGILAW 667 (RAJ)

Rupa Ram v. State of Rajasthan

2012-03-19

SANDEEP MEHTA

body2012
JUDGMENT 1. - Heard learned counsel for the parties. 2. By this petition, the petitioner has challenged the order dated 25.9.2007 passed by the Judicial Magistrate, Merta, taking cognisance against the petitioner for the offence under Section 304 Indian Penal Code as affirmed in revision by the learned Sessions Judge, Merta by his order dated 16.2.2008. 3. Succinctly stated the facts of the case are that one Chanderjeet Singh submitted a report at the P.S. Merta City on 21.8.2004 alleging inter alia that his uncle Bhura Ram has gone to Riyan Bari on 19.8.2004 at about 9.00 AM along with Ghisa Ram, Mangla Ram and Rupa Ram Sarpanch for execution of a sale deed in relation to an agricultural land but did not return back until 3.00 PM of 21.8.2004. One Dungar Ram informed him that the body of Bhura Ram was lying on the roof of a room at Chanderjeet's tube well. On this information, Hukma Ram, Karma Ram Jat and Karma Ram Khudkudiya accompanied the first informant and went to his tube well where they saw Bhura Ram lying dead on the roof of the tube well. On an enquiry being made from the villagers, it was revealed that Bhura Ram was last seen with Rupa Ram at the wine shop of Jassa Ram. Thereafter, no body saw him alive. On the basis of this report, inquest proceedings were registered under Section 174 Criminal Procedure Code being Inquest No. 16/2004. The post mortem of the body was conducted and the statements of certain witnesses were recorded. On 3.9.2004, one Prakash submitted a report at Police Station, Merta City with the allegation that his uncle had gone with Ghisa Ram, Mangla Ram and Rupa Ram and these three conspired together and murdered Bhura Ram by administering him poison. On this an F.I.R. No. 188/2004 was registered for the offences under Sections 302 and 120B Indian Penal Code and investigation commenced. During the course of investigation, the statements of various witnesses were recorded and the I.O. at the conclusion of investigation came to the finding that the death of Bhura Ram occurred due to natural cause i.e. heart failure. Thereafter, the investigation was assigned to Dy. During the course of investigation, the statements of various witnesses were recorded and the I.O. at the conclusion of investigation came to the finding that the death of Bhura Ram occurred due to natural cause i.e. heart failure. Thereafter, the investigation was assigned to Dy. S.P., Merta and Additional S.P., Naguar who all concurred with the earlier conclusion of S.H.O., Police Station Merta City that the death of Bhura Ram was due to natural causes and that no offence was made out against the accused persons. The post mortem of the deceased revealed no injures on his body but the viscera were sent for examination to the F.S.L. from where the report was received that there was presence of ethyl alcohol in the viscera of the deceased. Based on the said F.S.L. report, an opinion from the Medical Board was sought and the Medical Board opined that the cause of death of Bhura Ram was excessive consumption of alcohol. 4. It may be mentioned here that during the course of investigation, accused Mangla Ram had been arrested and regarding him, the police filed a application under Section 169 Criminal Procedure Code. 5. On the submission of final report, the complainant filed a protest petition for taking cognizance against Rupa Ram, Mangla Ram and Karma Ram. The learned Magistrate after considering the arguments in support of the protest petition, proceeded to hold that Bhura Ram was an ailing man suffering from Diabetes and Heart Problems and the accused petitioner insisted upon him to consume liquor inspite of the reluctance of the deceased to consume the same and thereby knowing the medical condition of the deceased, the accused forced him to take liquor on a empty stomach and them by not informing the family members of Bhura Ram and left him all alone at the tube well. This, as per the learned Magistrate, was an act by which the petitioner was liable to be prosecuted for offence under Section 304 Indian Penal Code The learned Magistrate, however, did not think it appropriate to summon the remaining two accused persons namely, Mangla Ram and Karma Ram and accepted the application under Section 169 Criminal Procedure Code filed in regards the accused Mangla Ram. The petitioner challenged the order taking cognizance by way of a revision and the revisional Court by order dated 16.8.2008 has affirmed the order of the learned Magistrate summoning the petitioner for offence under Section 304 Indian Penal Code but has modified the order by directing summoning of the petitioner by issuance of a bailable warrant instead of the warrant of arrest. 6. Accordingly, the petitioner has approached this Court by way of instant petition seeking quashing of orders impugned as well as cognizance taken against the petitioner. 7. Assailing the orders impugned passed by the Court below, counsel for the petitioner submitted that the order taking cognizance against the petitioner is ex facie illegal and also amounts to an abuse of process of Court. He also submitted that there was no material available on record to show that the petitioner forced the deceased to consume the liquor. It is argued that at best, the case of the prosecution is to the effect that the petitioner along with deceased as well as Karma Ram and Mangla Ram consumed liquor but merely by the fact of consumption of liquor, it cannot be inferred that the petitioner would be knowing that the deceased could died as a result of consumption of liquor. It is submitted that the deceased was not averse to the consumption of liquor and that there is no material on the record of the case to show that the petitioner forced the deceased to consume liquor. At best, it is submitted that the case of the prosecution even if accepted in its entirety, is to the extent that the petitioner and the co-accused persons offered liquor to the deceased despite knowing the fact that he was a diabetic and a heart patient. The inference which is sought to be drawn by the learned trial Court that the accused knew that in the medical situation which the deceased was, the consumption of liquor could prove fatal for him, cannot be said to be justifiable by any stretch of imagination. It is submitted that the petitioner as well as the co-accused persons are rustic villagers and it is impossible to believe that they would be knowing that the consequence of offering liquor to the deceased could prove fatal for him. It is submitted that the petitioner as well as the co-accused persons are rustic villagers and it is impossible to believe that they would be knowing that the consequence of offering liquor to the deceased could prove fatal for him. It is also submitted that it is the theory of the prosecution that the deceased was suffering from diabetes and heart ailment. It is submitted that if it was so, the deceased himself should have exercised restraint from consuming liquor without taking the food. It is also argued that on the very same evidence, when two co-accused persons have not been proceeded against, then summoning of the petitioner solely for the purpose of prosecution under Section 304 Indian Penal Code cannot be justified. Thus, it is prayed that the order taking cognizance is absolutely illegal and abuse of process of Court and the same deserves to be quashed. 8. Learned counsel for the complainant/respondent No. 2 as well as learned Public Prosecutor have opposed the prayer made in the petition and have submitted that the petitioner knowing the consequences of his act, deliberately offered and forced the deceased to consume the liquor, without him having had food which resulted into his death and, therefore, the order taking cognizance against the petitioner is justified and no interference is called for in the said order which has also been affirmed in revision, particularly, more so, when there is no abuse of process of Court and, therefore, this Court should refrain from interfering in the orders impugned while exercising powers under Section 482 Criminal Procedure Code. 9. I have considered the arguments advanced at bar and have considered the orders impugned and have perused the record. 10. After hearing the arguments and after considering the record of the case, this Court is of the opinion that the prosecution of the petitioner in this case is absolutely unjustified. The post mortem of the deceased reveals that there was no mark of injury on the body when the post mortem was conducted by the medical board. The body of deceased was found at the tube well of Narayan Lal (brother of the deceased) and it is no case of the prosecution that the petitioner was present at the said place with the deceased. The body of deceased was found at the tube well of Narayan Lal (brother of the deceased) and it is no case of the prosecution that the petitioner was present at the said place with the deceased. Even if the prosecution story regarding the petitioner offering liquor to the deceased despite having medical situation is considered to be true, then also, the theory of prosecution that the petitioner was responsible for the death of Bhura Ram by preventing him from consumption of food after consumption of liquor does not stand to scrutiny. From the statement of Sampudi recorded on 5.1.2005, on which much reliance has been placed by the learned Courts below, it becomes apparent that when the deceased came to her house in the night, she asked him to go back to his house and did not offer him food despite a request made by the demand. In this situation, it becomes apparent that the deceased was a free bird when he went to the house of Sampudi. He always had an option of going to his own house and consuming food and at that point of time, there was no obstruction or restriction upon the deceased from the side of the petitioner. Therefore, the prosecution of the petitioner in this case for offence under Section 304 Indian Penal Code is apparently without any justification. 11. The petitioner is also a rustic villager and it is impossible to believe that he would be knowing that the consequence of offering liquor to the deceased could prove fatal for him. 12. Consequently, the instant misc. petition is allowed, the orders dated 25.9.2007 and 16.2.2008 passed by the Judicial Magistrate, Merta and the learned Sessions Judge, Merta respectively are quashed.Stay petition also stands disposed of.Petition allowed. *******