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2013 DIGILAW 2297 (RAJ)

Nemaram v. State of Rajasthan

2013-12-16

BANWARI LAL SHARMA, GOVIND MATHUR

body2013
JUDGMENT Hon'ble MATHUR, J.—To question correctness of the judgment dated 7.4.2006, passed by learned Additional Sessions Judge (Fast Track), Balotara, this appeal is preferred. By the judgment impugned learned Additional Sessions Judge recorded conviction of the accused appellants and awarded sentence as under:- Accused Nemaram - u/S.447 IPC – One month's rigorous imprisonment. u/S.323 IPC – Three months' rigorous imprisonment. u/S.307 IPC – Seven years' rigorous imprisonment with a fine of Rs.2000/- and in default of payment of fine further to undergo one month's additional imprisonment. U/S.302 IPC – Life imprisonment with a fine of Rs.5000/-and in default of payment of fine further to undergo six months additional simple imprisonment. Accused Jesaram - u/S.447 IPC – One month's rigorous imprisonment. u/S.323 IPC – Three months' rigorous imprisonment. u/S.307 IPC – Seven years' rigorous imprisonment with a fine of Rs.2000/- and in default of payment of fine further to undergo one month's additional imprisonment. U/S.302/34 IPC – Life imprisonment with a fine of Rs.5000/-and in default of payment of fine further to undergo six months additional simple imprisonment. 2. Briefly stated, facts of the case are that the Station House Officer of Police Station Balotara on 4.5.2004, reduced in writing a statement of Shri Binjaram and on basis of that initiated investigation for commission of the offences punishable under Sections 323 and 307/34 Indian Penal Code against the accused appellants. As per the averments contained in the statement (Ex.P/17) given by Shri Binjaram, on 4.5.2004 at about 04:00 PM Kesaram and Pukhraj had some altercations with accused Nemaram for some money dispute. In evening, at about 08:00 PM Kesaram and Pukhraj went to the temple of Bhomiaji to offer 'prasad'. At the temple Nemaram, Jesaram and Khetaram armed with lathis came and entered into a quarrel with Pukhraj and Kesaram. Hearing the scream of Pukhraj and Kesaram, complainant Binjaram, Mohan, Papparam and Vardaram rushed towards the spot of incident. Nemaram gave a lathi blow on the head of Kesaram and Pukhraj received lathi blows from Khetaram. Jesaram also gave lathi blows to Kesaram. The assailants then fled from the spot. 3. While undergoing treatment at Mathuradas Mathur Hospital, Jodhpur, Kesaram died. The corpus of Kesaram was subjected to an autopsy and looking to the cause of death given in the postmortem report, the investigation also commenced for an offence punishable under Section 302/34 Indian Penal Code. Jesaram also gave lathi blows to Kesaram. The assailants then fled from the spot. 3. While undergoing treatment at Mathuradas Mathur Hospital, Jodhpur, Kesaram died. The corpus of Kesaram was subjected to an autopsy and looking to the cause of death given in the postmortem report, the investigation also commenced for an offence punishable under Section 302/34 Indian Penal Code. After completion of investigation a charge sheet was filed against Nemaram and Jesaram before the competent court, the case being sessions triable was committed to the court of Sessions, Balotara. Accused Khetaram being juvenile, his case was referred for adjudication to the Juvenile Justice Board, Jodhpur. 4. Learned Sessions Court after hearing the accused persons framed charges for commission of offences punishable under Sections 447, 323, 307 and 302 Indian Penal Code against accused Nemaram and for the offences punishable under Sections 447, 323, 307 and 302/34 Indian Penal Code against accused Jesaram. On denial of the charges trial commenced, as desired. 5. The prosecution supported its case with the aid of 16 witnesses and by getting several documents exhibited. Opportunity was also accorded to the accused persons to explain the adverse and incriminating circumstances against them in prosecution evidence. The accused pleaded their innocence with assertion that they were falsely implicated in a criminal case. In defence two documents Ex.D/1 and D/2 were examined. 6. After examining the evidence available on record, learned trial court held the accused appellants guilty for the offences charged and after recording conviction sentenced them accordingly. 7. In appeal, the argument advanced by counsel for the appellants is that even by accepting the case of the prosecution as advanced, the offence committed by accused Nemaram does not travel beyond an offence punishable under Section 304 part-II Indian Penal Code. With regard to accused Jesaram, it is submitted that as per the prosecution case he gave certain lathi blows on the legs of deceased Kesaram and the injuries given were simple, therefore, the offence said to be committed by him in no case travel beyond an offence punishable under Section 323 Indian Penal Code. It is asserted that no evidence is available on record to establish a common intention shared by this accused with accused Nemaram. It is asserted that no evidence is available on record to establish a common intention shared by this accused with accused Nemaram. Much emphasis is given by learned counsel that Kesaram died on 10.5.2004 i.e. after a lapse of about six days from the date of incident and that too on having septicemia, as such, the conviction recorded for commission of the offences punishable under Sections 302 and 302/34 Indian Penal Code to Nemaram and Jesaram respectively is absolutely ill-founded. 8. Per contra, as per learned Public Prosecutor the accused persons came to Bhomiaji Temple with predetermination to kill Kesaram and by sharing common intention gave fatal injuries to Kesaram, as such, the trial court rightly recorded their conviction under the relevant provision of Indian Penal Code. 9. Heard counsel for the appellants and learned Public Prosecutor. 10. Deceased Kesaram at the first instance was treated at Government Hospital Balotara and as per injury report (Ex.P/9) prepared at Balotara he was having following injuries:- 1. Bleeding 2. Swelling – diffuse. 3. Swelling – on both legs. 4. Swelling – diffuse - on left side of forehead. 11. Shri Pukhraj accompanying deceased Kesaram also had few injuries and those are assigned to juvenile Khetaram, thus, reference of these injuries in this case is not desirable. 12. The injuries referred in injury report (Ex.P/9) were verified by the doctor who prepared reports aforesaid by coming in evidence before the court. 13. The autopsy on the corpus of deceased Kesaram was made by Dr. D.S.Meratia (PW-3). As per the postmortem report (Ex.P/3) the deceased Kesaram was having following external injuries:- 1. Swelling – left forehead (diffuse). 2. Swelling over nose. 14. These injuries are shown as the outcome of one blow. On internal examination of skull, a blood clotting under the fronto parietal bone was found and even the brain was found injured. The cause of death given was the head injury. In light of the medical evidence available the death of Kesaram is homicidal one. 15. PW-9 Binjaram and injured Pukhraj (PW-12) were cited as eye witnesses of the incident. As per PW-9 Binjaram, on the fateful day Kesaram, Pukhraj and Sewaram went to Bhomiaji temple to offer 'prasad'. Bhomiaji temple is situated in the fields of Misraram. The accused persons also came to Bhomiaji temple, where Nemaram gave a lathi blow on the head of Kesaram. As per PW-9 Binjaram, on the fateful day Kesaram, Pukhraj and Sewaram went to Bhomiaji temple to offer 'prasad'. Bhomiaji temple is situated in the fields of Misraram. The accused persons also came to Bhomiaji temple, where Nemaram gave a lathi blow on the head of Kesaram. A lathi blow was given to Pukhraj by Khetaram. Jesaram also indulged in quarrel. As per this witness the accused persons after causing injury to Kesaram and Pukhraj fled from the spot. 16. The other eye witness PW-12 Pukhraj stated that on the fateful day he, Kesaram and Sewaram went to Bhomiaji temple. Mohanram, Binjaram, Papparam and Vardaram were also coming behind at the distance of about 10-20 steps. At that time Nemaram, Jesaram and Khetaram came. All the three persons were armed with lathis and Nemaram gave a lathi blow to Kesaram on his head. Jesaram also gave a lathi blow. A lathi blow was given to this witness by juvenile Khetaram. On raising alarm, Mohanram, Binjaram, Papparam and Vardaram came and the accused persons fled from the spot. 17. Suffice to mention that as per Shri Bhagwat Singh (PW-16), the Investigating Officer, a lathi was also recovered at the instance of accused Nemaram, but that was not having any blood stains and obviously so, as the deceased as per medical evidence was having swelling on his head without any external wound oozing blood. 18. We have examined the entire evidence available on record. 19. As per the prosecution, on the date of incident at first instance at about 04:00 PM the accused persons had a quarrel with Kesaram about some money dues. In evening, at about 08:00 PM, when Kesaram, Pukhraj and Sewaram arrived at Bhomiaji temple, accused Nemaram gave a single lathi blow on the head of Kesaram. The other accused Jesaram also said to have given lathi blow, but that was not on head. As per the medical evidence, deceased Kesaram was having swelling on his forehead and upper portion of nose. These antemortem injuries were outcome of the single blow. The head injury is assigned to accused Nemaram. As such, the injury given by accused Jesaram must be on other parts of deceased. These injuries must be on leg as referred in injury report (Ex.P/9). The injury is not noticed in postmortem. The injury being simple must have been healed during treatment. The head injury is assigned to accused Nemaram. As such, the injury given by accused Jesaram must be on other parts of deceased. These injuries must be on leg as referred in injury report (Ex.P/9). The injury is not noticed in postmortem. The injury being simple must have been healed during treatment. However, in view of the evidence adduced by eye-witnesses, participation of Jesaram in the incident is established. The total part of this accused in the incident is of giving simple injury on leg of Kesaram. No evidence is available on record to establish that this accused was sharing common intention with accused Nemaram to cause death of Kesaram. As such, his conviction could have not been recorded for the offence punishable under Section 34 Indian Penal Code. On appreciation of the evidence available, the offence against accused Jesaram at the most can be settled for Section 323 Indian Penal Code. 20. So far as accused Nemaram is concerned, as per the eye-witnesses he gave a lathi blow on the forehead of Kesaram. The medical evidence corroborates the same. This single injury was the cause of death. 21. As per eye-witnesses, the accused persons after giving injury to Kesaram fled from the spot. If the accused persons had any intention to cause death of Kesaram, then they would have given more injuries to him. It appears that the single injury was given by accused Kesaram without having any intention to cause death, though he may be having knowledge that the injury given by him on vital part like head may cause death. In such circumstance the offence committed by accused Nemaram is not a murder but an offence described and punishable under Section 304 part-II Indian Penal Code. 22. In view of the discussions made above, the appeal is allowed in part. 23. The conviction of accused appellant Nemaram for the offences punishable under Sections 447, 323, 307 and 302 Indian Penal Code is set aside. However, he is held guilty for commission of an offence punishable under Section 304 part-II Indian Penal Code. Accused Nemaram is accordingly sentenced to undergo ten years rigorous imprisonment with a fine of Rs.1000/-. In the event of default in payment of fine he shall be liable to undergo two months additional simple imprisonment. 24. However, he is held guilty for commission of an offence punishable under Section 304 part-II Indian Penal Code. Accused Nemaram is accordingly sentenced to undergo ten years rigorous imprisonment with a fine of Rs.1000/-. In the event of default in payment of fine he shall be liable to undergo two months additional simple imprisonment. 24. The conviction of accused Jesaram for the offences punishable under Sections 447, 307 and 302/34 Indian Penal Code is declared illegal and is set aside. His conviction for the offence punishable under Section 323 Indian Penal Code and the sentence awarded for that is maintained. The sentence awarded has also already been served by accused Jesaram, who is now availing suspension of sentence in pursuant to the order dated 21.3.2007. The sureties and bail bonds furnished by him stand discharged.