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2013 DIGILAW 468 (RAJ)

Ramchandra Gudaliya v. State of Rajasthan

2013-02-26

BANWARI LAL SHARMA, GOVIND MATHUR

body2013
JUDGMENT 1. - This appeal is directed against the judgment dated 5.2.2007 passed by learned Additional Sessions Judge (Fast Track) No. 1, Udaipur convicting the accused appellant for an offence punishable under Section 302 Indian Penal Code and sentencing to undergo life term imprisonment with a fine of Rs. 5000/- and further to undergo one year's rigorous imprisonment in the event of failure to pay the fine. 2. In brief, facts of the case are that on 20.1.2002, an oral information given by Shri Nanalal (PW-1) to Rajendra Kumar (PW-11) was reduced in writing and on basis of that a criminal case was registered at Police Station Vallabhnagar District Udaipur. As per the information given, deceased Pyarchand @ Prem Rawal father of Nanalal (PW-1), established a 'Shiv Math' in outskirts of village Navaniya and was staying there in a hut all alone. Several trees all around the Math were also planted by Shri Pyarchand @ Prem Rawal. Accused Ramchandra was intending to make some encroachment in the campus of Math, therefore, he was regularly harassing Shri Pyarchand @ Prem Rawal. An information in this regard was also given to the police station. From last about 5-6 days Ramchandra was tiding his buffaloes in the campus of the Math and that was resented by Shri Pyarchand @ Prem Rawal. On 20.1.2002 at about 11:00 AM when Shri Pyarchand @ Prem Rawal was strolling in the campus, Ramchandra came and gave several lathi blows to him. Hearing the noise, Nanalal (PW-1), Chhogalal (PW-3), Kishanlal (PW-10), Jagdish (PW-4), Jaishankar (PW-12) and several other persons rushed towards the spot of occurrence. Looking to the other persons Ramchandra fled from the spot where dead body of Shri Pyarchand @ Prem Rawal was lying. 3. After completing the investigation, the prosecution filed a report before the competent court and the same was committed to the court of Sessions wherefrom the case was transferred for its adjudication to the court of learned Additional Sessions Judge (Fast Track) No. 1, Udaipur. A charge for commission of an offence punishable under Section 302 Indian Penal Code was framed against the accused on 14.5.2002 and on denial of the same trial commenced, as desired. 4. The prosecution supported its case with the aid of 12 witnesses, out of whom Shri Nanalal (PW-1), Shri Chhogalal (PW-3), Jagdish (PW-4), Kishanlal (PW-10) and Jaishankar (PW-12) were cited as eye witnesses. 4. The prosecution supported its case with the aid of 12 witnesses, out of whom Shri Nanalal (PW-1), Shri Chhogalal (PW-3), Jagdish (PW-4), Kishanlal (PW-10) and Jaishankar (PW-12) were cited as eye witnesses. The prosecution also got several documents exhibited. 5. An opportunity was given to the accused appellant to explain the adverse and incriminating circumstances against him in prosecution evidence. While calling the same false, the accused stated that as a matter of fact he was having old possession on the land but deceased Pyarchand @ Prem Rawal, his son Nanalal, Jagdish, Chhogalal, Kishanlal etc. were trying to uproot him from the land aforesaid. On the fateful day Pyarchand @ Prem Rawal with the aid of the persons named above tried to throw him out from the land. While doing so, an attempt was made to gave axe blow. The blow sought to be given was resisted and the axe was snatched from the hand of Pyarchand @ Prem Rawal. While defending himself, Pyarchand @ Prem Rawal received a blow on his back from the handle stick of the axe. The accused then tried to escape himself and Pyarchand @ Prem Rawal while chasing him fell down from a stone wall, thus, received certain injuries, resulting into his death. 6. The testimony of accused was also examined as per provisions of Section 315 Cr.P.C. as DW-1. He also got certain documents exhibited as Ex.D/1 to Ex.D/3. 7. After hearing learned Public Prosecutor, learned counsel for the accused and examining the evidence available, the trial court recorded conviction and awarded sentence. 8. In appeal, the only argument advanced by counsel for the appellant is that even by admitting the prosecution case, 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 ample evidence is available on record to establish that the deceased entered into altercation with the accused and as a consequent to sudden provocation lathi blow was given by the accused. It is asserted that the accused was not armed with any lethal weapon, no evidence is available on record about premeditation for committing the offence, the nature of the injuries and article recovered too are sufficient to establish commission of the offence described as homicidal death not amounting to murder. 9. It is asserted that the accused was not armed with any lethal weapon, no evidence is available on record about premeditation for committing the offence, the nature of the injuries and article recovered too are sufficient to establish commission of the offence described as homicidal death not amounting to murder. 9. Per contra, as per learned Public Prosecutor the accused went to the place that was under occupation of deceased and voluntarily gave him serious lathi blows, thus, his intention to kill him is apparent. 10. Heard learned counsels and also scanned the entire record. 11. As per PW-1 Nanalal, his father deceased Shri Pyarchand @ Prem Rawal was living at Shiv Math all alone and in campus of that some land was encroached by the accused about six months earlier. This witness also accepted that some dispute was existing between the accused and deceased about possession over the land of Shiv Math. As per this witness the accused was tiding his buffaloes at the disputed site from last 5-6 days. This witness during cross examination stated that as a matter of fact the incident occurred at Khora Magra, a place nearby to the Math of deceased Shri Pyarchand @ Prem Rawal. 12. PW-3 Chhogalal also stated that while going towards his house with Kishanlal on motorcycle, he saw that Ramchandra was giving lathi blows to deceased Pyarchand @ Prem Rawal. This witness then raised alarm, consequently Jagdish, Nanalal and Jaishankar came to the spot. On coming of other persons accused fled from the spot. This witness also stated that from last 5-6 days Ramchandra was keeping his buffaloes at the place of incident within the boundary of Math. 13. PW-4 Jagdish also stated the same facts. 14. PW-12 Jaishankar has not supported the prosecution case, thus, at the request of learned Public Prosecutor he was declared hostile. In cross examination this witness stated that the fact about dispute between the deceased and accused was not within his knowledge. 15. At this juncture, it shall be relevant to discuss the statements of PW-11 Shri Rajendra Kumar, the Investigating Officer, who while narrating all the steps taken during the course of investigation, stated that at the spot of occurrence fencing was put by accused Ramchandra, wherein he was keeping his buffaloes. 15. At this juncture, it shall be relevant to discuss the statements of PW-11 Shri Rajendra Kumar, the Investigating Officer, who while narrating all the steps taken during the course of investigation, stated that at the spot of occurrence fencing was put by accused Ramchandra, wherein he was keeping his buffaloes. As per this witness some dispute was already existing between the accused and deceased and the proceedings as per provisions of Section 107 Cr.P.C. were pending consideration before the court of Sub Divisional Magistrate, Vallabhnagar. 16. On examination of the statements of eye witnesses in addition to narration given by the Investigating Officer, it is apparent that some dispute was existing between the parties, the spot of occurrence is nearby to the Math where deceased was residing and the spot was fenced by the accused to keep his buffaloes. The injuries received by the deceased were admittedly given by lathi and not by other lethal weapon. Suffice to mention here that the lathi recovered at the instance of the accused appellant was also not having blood stains. From the medical evidence available on record, though it is established that the death of Pyarchand @ Prem Rawal was homicidal one, but the injuries received were mainly simple bruises. The cause of death was fracture of ribs and homothorax in both side of lungs. 17. The facts narrated above indicate that the accused though was intending to cause bodily injury to the deceased likely to cause death, however, there was no premeditation and the entire incident occurred due to grave and sudden provocation. The case of the accused, thus, comes within the purview of an offence described under Section 304 Part-I Indian Penal Code. 18. Accordingly, this appeal is allowed in part. The conviction of the accused appellant under Section 302 Indian Penal Code is set aside and is substituted by an offence punishable under Section 304 Part-I Indian Penal Code. The sentence of life term imprisonment with a fine of Rs. 5000/- too is modified by rigorous imprisonment of ten years with a fine of Rs. 5000/-. In the event of failure to deposit the fine, the accused is required to further undergo three months imprisonment.Appeal partly allowed. *******