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2016 DIGILAW 912 (RAJ)

Kesaram v. State of Rajasthan

2016-07-01

P.K.LOHRA

body2016
JUDGMENT : P.K. Lohra, J. 1. Accused-appellant has filed this appeal under Section 374 Cr.P.C. to challenge impugned judgment dated 30th of September, 1997 passed by Sessions Judge, Sirohi (for short, 'learned trial Court'), whereby the appellant is convicted for offence under Section 304 Part-II IPC and sentenced for four years rigorous imprisonment with fine of Rs. 200/- and in default of payment of fine, learned trial Court ordered that appellant shall further undergo sentence for one month's simple imprisonment. 2. Succinctly stated the facts of the case are that complainant, Kanaram submitted a written report (Ex.P/7) before the SHO, Police Station Sirohi alleging that his daughter Ms. Rai entered into matrimony with the accused-respondent about a year back and, for quite sometime, their relations remained cordial. It is also stated in the report that before Holi festival, there was some bickering between accused and his daughter Ms. Rai, and therefore, accused did not allow her to leave matrimonial home for returning to her parents. When the complainant went to in-law's house of Ms. Rai, accused did not permit her to accompany him and finally, on intervention by the reputed members of the community, he allowed Ms. Rai to accompany him. It is in that background, the accused became annoyed and persecuted both complainant and Ms. Rai and, despite efforts being made by the complainant, he inflicted injury on the head of Ms. Rai by using a stone. The injury inflicted by the accused was so serious that Ms. Rai succumbed to the same on spot. The police, after making necessary investigation, registered a case against the accused-appellant for offence under Sections 302 and 498-A IPC and filed charge-sheet before the concerned Magistrate. The concerned Magistrate committed case before the learned trial Court. 3. The learned trial Court framed charges against the appellant under Section 302 IPC and the same was denied by the appellant, and therefore, he was put to trial. 4. During trial, prosecution, in order to prove charge against the accused-appellant, examined thirteen witnesses. After conclusion of prosecution evidence, statement of accused under Section 313 Cr.P.C., were recorded and the final arguments were heard by the learned trial Court. 5. 4. During trial, prosecution, in order to prove charge against the accused-appellant, examined thirteen witnesses. After conclusion of prosecution evidence, statement of accused under Section 313 Cr.P.C., were recorded and the final arguments were heard by the learned trial Court. 5. The learned trial Court, after appreciation of evidence and material available on record, declined to indict the accused-appellant for offence under Section 302 IPC and found that offence under Section 304 Part-II IPC is fully established against him. Thereupon, considering culpability of the accused-appellant for aforesaid offence, he was sentenced to the punishment aforesaid. 6. Learned counsel for the accused-appellant has vehemently argued that the learned trial Court has committed grave and serious error of law and fact in convicting the appellant for offence under Section 304 Part-II IPC, and therefore, his conviction for aforesaid offence cannot be sustained. Learned counsel would contend that if the evidence of the prosecution witnesses is properly construed in conjunction with the medical evidence, then it is not possible for a prudent man to indict the accused-petitioner for offence under Section 304 Part-II IPC inasmuch as there is nothing on record to show that appellant had knowledge that injury inflicted by stone would be such a serious that it is likely to cause death of the victim. Learned counsel contends that it is a case of grievous hurt and therefore, at the most, offence under Section 325 IPC is made out against the accused-appellant. In the alternative, learned counsel for the appellant has urged that, keeping in view the fact that accident is of almost two decades old and the appellant has already undergone sentence for a period of two years, five months and eight days it would be appropriate to grant some indulgence to the appellant in the matter of punishment. Learned counsel, therefore, submits that, in totality of circumstances, punishment awarded to the petitioner be altered by reducing the same to the extent he has already undergone. In support of his contentions, learned counsel has placed reliance on following legal precedents:- 1. Sakir Mohammed @ Sakir Hussain v. State of Raj. 1983 (8) Cr.L.R (Raj.) 707 2. Ghamanda & Ors. v. The State of Raj. 2009 (2) CJ(Cr.) (Raj.) 866 3. Ashok & Ors. v. State of Raj. 2015 (4) Cr.L.R. (Raj.) 1642 7. Per contra, learned Public Prosecutor has vehemently opposed arguments advanced by learned counsel for the appellant. Mr. Sakir Mohammed @ Sakir Hussain v. State of Raj. 1983 (8) Cr.L.R (Raj.) 707 2. Ghamanda & Ors. v. The State of Raj. 2009 (2) CJ(Cr.) (Raj.) 866 3. Ashok & Ors. v. State of Raj. 2015 (4) Cr.L.R. (Raj.) 1642 7. Per contra, learned Public Prosecutor has vehemently opposed arguments advanced by learned counsel for the appellant. Mr. Bhardwaj would contend that, taking into account the entire fact scenario, it is not desirable to grant any reprieve to the appellant in the matter of punishment. 8. I have heard learned counsel for the parties, perused the impugned judgment and thoroughly scanned entire record of the case. 9. Upon perusal of the impugned judgment in conjunction with the record of the case, I am unable to find any illegality or impropriety in appreciation of evidence by learned trial Court. As a matter of fact, charge against the accused-appellant was framed under Section 302 IPC and the learned trial Court, after thoroughly examining the evidence of material prosecution witnesses and the medical evidence, has pardoned the appellant for offence under Section 302 IPC. The learned trial Court has also taken a very benevolent view by recording finding of guilt against the accused-appellant for offence under Section 304 Part-II IPC. Therefore, I am not impressed by the argument of learned counsel for the appellant that offence committed by the appellant is punishable under Section 325 IPC and not 304 Part-II IPC. The judgment in case of Sakir Mohammed (supra) is, therefore, clearly distinguishable and cannot render any assistance to the appellant. 10. Now, adverting to alternative submission of learned counsel for the appellant for reducing sentence suffice it to observe that learned trial Court has handed down sentence of four years rigorous imprisonment to the appellant and admittedly appellant has already undergone a sentence of two years, five months and eight days. This sort of situation is a relevant consideration to grant some indulgence to the appellant in the matter of punishment. That apart, the fact that incident has occurred in the year 1995 and since then more than two decades have elapsed and appellant remained on bail during pendency of this appeal, it would not be appropriate to incarcerate him to jail at this stage. It is also noteworthy that the appellant has served substantial period of sentence awarded by the learned trial Court. 11. It is also noteworthy that the appellant has served substantial period of sentence awarded by the learned trial Court. 11. My this view is also fortified from judgment of Division bench of this Court in Ghamanda & Ors. (supra), wherein Division Bench has reduced the sentence to the extent already undergone by the accused i.e. four months. In Ashok & Ors. (supra), a co-ordinate Bench of this Court also granted indulgence to the accused in the matter of punishment by reducing the same to the sentence already undergone i.e. nine months. 12. As, in the instant case, the accused has undergone sentence of two years, five months and eight days, the ratio decidendi in the aforesaid cases can very well be applied for reducing the sentence awarded to the appellant. Accordingly, instant appeal merits acceptance in part, and therefore, appeal is allowed in part by maintaining the conviction of the appellant for offence under Section 304 Part-II IPC with the reduced sentence of two years, five months and eight days, which he has already undergone and fine imposed by the learned trial Court. The appeal is allowed in part as indicated herein above.