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2016 DIGILAW 1079 (RAJ)

State of Rajasthan v. Nima Ram

2016-07-27

G.R.MOOLCHANDANI, GOPAL KRISHAN VYAS

body2016
JUDGMENT : Mr. G.K. Vyas, J. In this Cr. appeal filed by the State of Rajasthan, the judgment dated 31.1.1992 passed by the learned Addl. Sessions Judge, Bikaner in Sessions Case No.4/1992 is under challenged whereby the respondents were acquitted from the charges levelled against them under Section 302 and in the alternative under Section 302/149 and under Section 447 of the IPC, but the learned trial court has convicted the respondents for the offences under Section 148 and 325/149 IPC and passed the following sentence: Under Section 148 IPC Three months SI Under Section 325/149, IPC Three months SI and a fine of Rs. 1000/- each and in default of payment of find to further undergo three months SI. During the pendency of this appeal, out of the five accused-respondents, the accused respondent no.1 Moola Ram S/o Surta Ram died on 19.8.2008 and therefore, appeal against him was dismissed as abated by this court vide order dated 25.7.2016. The amended cause title has already been filed. Therefore, this appeal is heard only with respect to the accused respondents Nima Ram, Bhinya Ram, Dana Ram and Bhanwar Lal. 2. As per brief facts of the case the complainant Hanuman (PW-1) lodged oral complaint on 24.7.1989 at 12.15 pm at Police Station Loonkaransar alleging therein that there is dispute in between his uncle and other brothers regarding agricultural field ad measuring 216 bighas and 17 biswas situated at village Bhakedeshar in which all the family members are having their share. As per the complainant he was in possession of the land in his part where he was cultivating "Bajari". On the relevant day, in the morning when he was going to his neighbour Bhojraj Singh's Dhani he heard hue and cry from his agricultural field. On hearing, he and Bhojraj Singh rushed to the place of occurrence and saw that Moola Ram, Nima Ram, Bhiya Ram, Dana Ram and Bhanwar Lal were beating his wife armed with Jai, axe and Chosangiya. The complainant Hanuman and Bhojraj Singh called all the accused respondents, but they run away towards their field. As per allegation of complainant, Moola Ram and Bhinya Ram were having weapon Jai and Nima Ram was having axe and respondent Bhanwar Lal was having Chosinga, so also, Dhanna Ram having Lathi in his hand. 3. The complainant Hanuman and Bhojraj Singh called all the accused respondents, but they run away towards their field. As per allegation of complainant, Moola Ram and Bhinya Ram were having weapon Jai and Nima Ram was having axe and respondent Bhanwar Lal was having Chosinga, so also, Dhanna Ram having Lathi in his hand. 3. When complainant reached on spot, his wife was lying in unconscious condition and there were number of injuries upon her body. The complainant tried to give water to her, but she was not in position to speak because she was unconscious and after some time, she died. According to the complainant upon 4 bighas of land he was in possession and for partition an application was moved by him before the Tehsildar, Loonkaransar but no action has been taken by the Tehsildar, Loonkaransar upon his application. 4. The SHO, Police Station, Loonkaransar registered the FIR no.99 on 24.7.1989 and commenced investigation. In the investigation, it is found that due to dispute of share in the agricultural land, the incident took place in which the injuries were caused. After completion of investigation, the charge-sheet under Section 302, 447, 147, 148 and 149 IPC was filed against the respondents in the court of Munsif and Judicial Magistrate, Loonkaransar from where case was committed to the Sessions Court but later on transferred to the court of Addl. Sessions Judge, Bikaner for trial. 5. In the trial, after providing an opportunity of hearing to the respondents, the learned trial court framed charge under Section 148, 447, 302 and in the alternative under Section 302/149 IPC. After framing charge, the evidence of prosecution was recorded. 14 prosecution witnesses were produced in the court to prove the prosecution case. After recording their statements, the statement of respondents were recorded under Section 313 Cr.P.C. in which they denied all the allegations levelled against them and produced to witnesses DW-1 Asu Ram and DW-2 Prithvi Singh in their defence. 6. The learned trial court after recording entire evidence finally heard the arguments and vide judgment dated 31.1.1992 passed in Sessions Case No.4/1992 acquitted all the respondents from the charge against them under Section 302 and in the alternative under Section 302/149 and under Section 447 IPC but held the respondents guilty for offence under Sections 148 and 325/149 and passed the sentence aforesaid. 7. 7. In this appeal, the State of Rajasthan is challenging validity of the judgment against the finding for offence under Section 302 and in the alternative under Section 302/149 IPC on various grounds. 8. Learned Public Prosecutor argued that the finding given by the learned trial court that acquittal of respondents from the charge levelled against them under Section 302 and in the alternative under Section 302/149 IPC and for offence under Section 447 IPC is totally erroneous because the learned trial court accepted the incident, but without considering the statement of PW-7 Dr. Jagdish Sankhala and other eye witnesses PW-1 Hanumang, PW-2 Bhojraj and PW-4 Raju Ram acquitted the respondents from the charge levelled against them whereas upon proper assessment of the evidence of these witnesses it is a case in which the respondents are guilty to commit offence of murder. 9. Learned Public Prosecutor argued that solely on the basis of minor contradiction in the statement of witnesses, the learned trial court gave erroneous finding for acquittal under Section 302 and in the alternative under Section 302/149 IPC while ignoring the fact that witnesses are uneducated villagers and it is not possible for them to narrate whole incident in proper manner. As per learned Public Prosecutor the arms were recovered at the instance of the respondents, which is admissible under Section 27 of the Evidence Act but the learned trial court committed an error to disbelieve recovery of weapons as such the finding of the learned trial court for acquittal from the charge under Section 302 and under Section 302/149 IPC is totally erroneous. 10. The crux of the argument of the learned Public Prosecutor is that the complainant party was peacefully residing in their share of agricultural land and cultivating Bajari but the respondents assaulted a lady to dispossess from her land and caused 12 injuries and as per the statement of doctor Parmeshari W/o Hanuman died due to injuries and therefore, the judgment impugned in this appeal may kindly be quashed and respondents may kindly be held guilty for offence under Section 302 and in the alternative under Section 302/149 IPC along with other offences for which there is finding of the learned trial court for their conviction. 11. 11. Per contra, learned counsel appearing for the respondents submits that there is not error in the finding given by the learned trial court for acquitting the respondents from the charge levelled against them under Section 302 and in the alternative under Section 302/149 IPC and under Section 447 of the IPC because admittedly, land in question belongs to whole family including complainant party and respondents and no partition took place. Similarly, it is submitted that prosecution story is totally false because the complainant and his wife were not in possession of land, more so, they were tried to make encroachment. The learned counsel for the respondents submits that the Tehsildar, PW-13 Om Prakash categorically stated in his cross-examination that complainant Hanuman filed an application for partition in which it is stated by him that land in question is a joint property of whole of the family and all the members are cultivating the land upon their share, but it is nowhere stated in Ex.P/1 application filed by him that any other co-sharer is there. The learned trial court after considering entire facts held that land upon which occurrence took place was belonging to accused party and accused party trying to dispossess the deceased from their share of land the learned trial court held that it is a case to dispossess the complainant party along with deceased from land of the share of accused party and there was no intention to kill her, therefore, the finding given by the learned trial court not to accept the prosecution case for offence under Section 302 and in the alternative under Section 302/149 IPC and under Section 447 IPC does not require any interference. It is also submitted that as per the post-mortem report none of the injury was found on the vital part of the body nor any injury was sufficient to cause death, therefore, the learned trial court while acquitting the respondents from the charge levelled against them under Section 302 and 302/149 IPC convicted the respondents for the offence under Section 325/149 and under Section 148 IPC. According to the finding of the learned trial court, the act of accused respondents was acceding their right of defence which is not punishable under Section 302 IPC. According to the finding of the learned trial court, the act of accused respondents was acceding their right of defence which is not punishable under Section 302 IPC. The learned trial court after assessing entire evidence gave finding that offence under Section 447 IPC is not made out because land in question was belonging to the accused party, therefore, the instant appeal filed by the State Government may kindly be dismissed. 12. After hearing the learned counsel for the parties, we have perused the entire evidence including post-mortem report. In the post-mortem report (Ex.P/18), 19 injuries are mentioned but none of the injury was sufficient to cause death. More so, none of the injury was found upon vital part of the body, but doctor gave its opinion that cause of death was due to excessive internal hemorrhage from the ligature of liver caused by injuries to liver. The PW-7 Dr. Jagdish Sankhala stated in his cross-examination that: ^^ge iksLVekVZe taxy esa gh ;k ekSds ij gh tkdj djrs gSaA ;g lgh gS fd yhoj dh pksV dkt vkWQ MSFk esa tks pksV crkbZ gS mlesa dksbZ vof/k vafdr dh gqbZ ugha gSA yhoj esa ;fn dksbZ [kjkch gks rks mlesa l`tu oxSjg gks ldrh gSA eq>s irk ugha gS fd e`rdk Jhefr ijes'ojh ds igys ls gh dksbZ yhoj dh chekjh gksA ;fn yhoj ij igys ls gh l`tu gks rks lkekU; pky <+ky ;k ihB ls Hkh ml ij ysljsVsM vk ldrk gSA e`rdk ds fdlh uktqd vax ij dksbZ pksV xaHkhj ugha FkhA ;g lgh gS fd e`rdk dh e`R;q leLr pksVksa dk dkj.k FkhA bu pksVksa esa ls ,slh dksbZ pksV ugha Fkh tks ,d pksV gh e`R;q dkfjr djus esa lfQfl;sUV gksA leLr pksVksa dk gh e`R;q dkfjr djus esa ;ksxnku FkkA e`rdk dh lHkh 19 pksVksa esa dksbZ Hkh pksV e`R;q dkfjr djus esa l{ke ugha FkhA ;kfu dksbZ pksV izk.k?kkrd ugha FkhA** 13. Upon perusal of the above statement of PW-7 Dr. Jagdish Sankhala we are of the opinion that finding given by the learned trial court for not accepting the prosecution case for offence under Section 302 and in the alternative under Section 302/149 IPC is perfectly justified and based upon the appreciation of medical evidence. Upon perusal of the above statement of PW-7 Dr. Jagdish Sankhala we are of the opinion that finding given by the learned trial court for not accepting the prosecution case for offence under Section 302 and in the alternative under Section 302/149 IPC is perfectly justified and based upon the appreciation of medical evidence. It is also worthwhile to observe that as per the prosecution case five accused went on spot leased with weapon but none of the injury found upon the body of the deceased were found to be sufficient to cause death. This fact itself sufficient to assess the finding of the learned trial court that no offence under Section 302 and in the alternative under Section 302/149 IPC is made out. It is true that in this case due to injury caused to the deceased fractures of 4th, 5th, 6th, 8th, and 9th ribs were caused but those fractures were not cause of death of the deceased as per opinion of the doctor. 14. It emerges from the fact that on the fateful day, the deceased and complainant party were trying to make encroachment upon the land of the respondents, the accused party went on spot to oust Parmeshwari (deceased) from the land in question because in family settlement the land upon which the deceased was trying to cultivate Bajari was in possession of the accused party. 15. In our view the nature of assault coupled with the manner in which it was made and upon the fact that respondents were having weapon but did not inflict any injury upon vital part of the body, therefore, obviously, it is a case for offence under Section 325/149 IPC, none else. We have considered the opinion of the doctor in which nature of injury caused by the respondents to the deceased not fall under Section 302 or in the alternative under Section 302/149 IPC but certainly fall as grievous hurt under Section 320 clause seventhly which reads as under: "320 Grievous hurt.- The following kinds of hurt only designated as "grievous":- Seventhly - Fracture or dislocation of a bone or tooth." 16. The punishment for voluntarily causing grievous hurt is provided in Section 325 IPC, which reads as under: "325. The punishment for voluntarily causing grievous hurt is provided in Section 325 IPC, which reads as under: "325. Punishment for voluntarily causing grievous hurt.- Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 17. The coordinate bench of this Court in the case of Todarmal & anr v. State of Rajasthan (DB Cr. Appeal No.43/1988), decided on 12.7.2016 while considering the identical issue quashed the conviction under Section 302 and 307 IPC and altered the conviction under Section 325 IPC. Similarly, in the case of Sukliya v. State of Madhya Pradesh reported in (2010) 16 SCC 745 held as under: "6. The settled position of law regarding the powers to be exercised by the High Court in an appeal against the order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will not interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced. The High Court should be slow in disturbing the finding of the fact arrived at by the trial court. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other therefore his innocence, the view which is favourable to the accused should be adopted. 18. In view of the above and upon overall assessment of evidence, we are of the opinion, that the learned trial court has rightly arrived at with the finding that no offence under Section 302 or in the alternative under Section 302/149 IPC and under Section 447 IPC is made out. The learned trial court has rightly convicted the respondents for offence under Section 148 and 325/149 IPC and passed the sentence aforesaid. 19. Therefore, this appeal filed by the State of Rajasthan is hereby dismissed.