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2017 DIGILAW 130 (RAJ)

Amar Singh v. State of Rajasthan

2017-01-11

GOVERDHAN BARDHAR, NAVIN SINHA

body2017
JUDGMENT : Navin Sinha, J. 1. Appellant No. 1 stands convicted under Section 302 IPC and the others under Section 302/149 IPC to life imprisonment with fine and default stipulation along with one year rigorous imprisonment under Section 148 IPC ordered by the Sessions Judge, Merta dated 16.03.1989 in Sessions Trial No. 36 of 1987. 2. The deceased Sadashivram was assaulted in front of his shop on 14.03.1987 at 11:00 a.m. leading to FIR, Exhibit-P/2, by his father PW-1, Hansa Ram the same day at 6:30 p.m. Appellant No. 1 is said to have come to the shop and asked for supplies on credit which the deceased declined. The Appellant went away abusing to return five to seven minutes later with the others. Appellant No. 1 was armed with Dharia and gave a single blow on the head. The others assaulted with Lathis in an omnibus manner. The deceased was taken to the Government Hospital, Harsor from where he was referred to Nehru Hospital, Ajmer and expired three days later on 17.03.1987. 3. Learned counsel for the Appellants submitted that the conviction of the Appellants under Sections 302, 302/149 IPC was not sustainable in the facts of the case. There was no common object to kill. At best the Appellants intended to teach the deceased a lesson for refusing supplies on credit. There was no past enmity to even suggest a motive. If there existed a common object to kill nothing prevented Appellant No. 1 from attacking with the sharp edge of the Dharia rather than with the wooden handle. There has been no repetition of the assault. The others are said to have assaulted in an omnibus manner on non-vital parts of the body such as arm, forearm. The injuries are simple in nature except for injury No. 4 causing fracture of the base of left metacarpal bone on the right hand. The Trial Judge erred in appreciating the evidence of DW-6 Dr. Satyanaran Sharma who conducted the MLC Exhibit D/6 of Appellant No. 1 on 14.03.1987 itself at 5:30 p.m. and found abrasion on his body which could have been caused by a hard blunt substance within 24 hours. If neither the witness has been disbelieved nor the MLC held to be fabricated, there is no warrant for the conclusion based on assumption and presumption that it may have been a self inflicted injury. If neither the witness has been disbelieved nor the MLC held to be fabricated, there is no warrant for the conclusion based on assumption and presumption that it may have been a self inflicted injury. The defence under Section 313 Cr.P.C. of an altercation preceding the assault has not been considered and appreciated. The deceased did not die immediately but expired three days later during the course of treatment. The conviction of the Appellants deserves to be altered to one under Section 304 Part II IPC. Reliance was placed on AIR 1981 SC 1552 [Jagrup Singh Vs. State of Haryana]. 4. Learned Counsel for the State and the Informant opposing the appeal submitted that the conviction called for no interference. Common object to kill is apparent from Appellant No. 1 having gone back after being refused supplies on credit and then all the Appellants came together armed followed by the assault. What was the common object has to be deciphered from the nature of weapon used and the manner in which the assault is made and the manner in which the assailants came and departed. If the assembly came together in the knowledge that one of them possessed a sharp cutting weapon they were all aware that it was likely to be used. The fact that the sharp edge may not have been used could have been providence also resulting in the assault with the handle. The assault was on the head, a sensitive part of the human body. After the deceased fell down the other assaulted him with a Lathi when he was in a helpless condition and not in a position to run away even. The Trial Judge has adequately expressed doubts with regard to the MLC of Appellant No. 1 Exhibit D/6 not only on the ground that it may have been self inflicted, but also that it was not commensurate to the assault made on the deceased and the possibility of it being self inflicted could not be ruled out. DW-6 had originally been examined as PW-9 and had stated that he was not able to recollect if he had examined Appellant No. 1 or not. Reliance was placed on 2014 CriLJ 3143 [Sompal Singh & Anr. Vs. State of UP] to contend that if at all, the conviction could at best be altered to Section 304 Part I. 5. DW-6 had originally been examined as PW-9 and had stated that he was not able to recollect if he had examined Appellant No. 1 or not. Reliance was placed on 2014 CriLJ 3143 [Sompal Singh & Anr. Vs. State of UP] to contend that if at all, the conviction could at best be altered to Section 304 Part I. 5. We have considered the submissions on behalf of the parties and perused the evidence on record. 6. The prosecution has not alleged any previous enmity between the deceased and the Appellants. The charge under Section 449 IPC of house trespass and dragging the deceased outside his shop to assault has been disbelieved. Appellant No. 1 first came to the shop of the deceased and asked for supplies on credit. Upon having been refused, he went away and returned back within five minutes with others armed with Dharia and Lathis. DW-6 as PW-9 stated that he could not recollect orally and off hand whether he had examined Appellant No. 1 or not. He did not deny that he had never examined him. The Trial Judge has not disbelieved the evidence of DW-6 that he had examined Appellant No. 1. His MLC Exhibit D/6 has also not been rejected as being fictitious, forged or fabricated. In the circumstances there was no occasion or material to conclude on conjectures and surmises that it may have been a self inflicted injury. If that were so the prosecution had to establish the same on basis of evidence. The defence of Appellant No. 1 under Section 313 Cr.P.C. was that the deceased abused him and then he also retorted by abuse after which the assault followed has not been properly appreciated as to whether it constituted grave and sudden provocation or not. 7. The sequence of events show that the Appellants were angered by the conduct of the deceased in refusing supplies on credit but the manner of assault made does not reflect that there was any common object to kill. Undoubtedly they returned within minutes armed followed by the assault. But Appellant No. 1 did not assault with the sharp edge of the Dharia and did so with the wooden handle. Undoubtedly they returned within minutes armed followed by the assault. But Appellant No. 1 did not assault with the sharp edge of the Dharia and did so with the wooden handle. The postmortem report is that it caused hematoma 8 X 5 c.m. on left temporal parietal region above left ear and a linear oblique fissure fracture of the left temporal bone about 8 c.m. in length with the flattening of underlying surface of brain due to pressure. If the deceased fell down after the first assault nothing prevented Appellant No. 1 from repeating the assault or the others assaulting him mercilessly in a helpless condition so that he had no chances of survival at all. This is a mitigating factor in favour of the Appellants. The other injuries were abrasion on the right cheek, contusion on the back of the right forearm and middle, another contusion on the left forearm and a contusion swelling on the back of the right hand with the underlying fracture of the base of left metacarpal bone. Except for the last they were all simple in nature which speaks volumes about what their object or intention may have been. 8. PW-9 Dr. Satya Narayan who first examined the deceased at the government hospital Harsor before referring him to the hospital at Ajmer has not stated that the singular injury attributed to Appellant No. 1 was sufficient in the ordinary course of nature to cause death. The deceased survived for three days before he succumbed. The assault was made on the spur of the moment in view of the defence under Section 313 Cr.P.C. corroborated by the MLC of Appellant No. 1. Applying the test laid down in AIR 1958 SC 465 (Virsa Singh Vs. State of Punjab) it is difficult to hold in the facts of the case that Appellant No. 1 intended to cause the very injury which was caused. The question of any intention on his part to cause death by assault therefore does not arise. 9. In Jagrup Singh (Supra) a single assault was made on the head with the blunt side of a ghandala on the spur of the moment peeved by not having been invited for the marriage. It caused a lacerated wound 9 c.m. X 1.5 c.m. on the head parietal region. The injured was deceased the next day. 9. In Jagrup Singh (Supra) a single assault was made on the head with the blunt side of a ghandala on the spur of the moment peeved by not having been invited for the marriage. It caused a lacerated wound 9 c.m. X 1.5 c.m. on the head parietal region. The injured was deceased the next day. The conviction under Section 302 deserves to be set aside and converted to under Section 304 Part II IPC. 10. Reliance by the Respondents on Sompal Singh (Supra) is distinguishable on its own facts as more than one injury was caused on the head by more than one assailant. 11. Appellant Nos. 2 to 5 assaulted with lathis which is not specifically a weapon of offence but an item possessed by any villager. The deceased had fallen on the ground and was therefore a sitting target. Yet the nature of the assault was not merciless intended to cause death as evident from the post mortem report and the portion of the body assaulted. The question of the Appellants having common object to kill the deceased as to invoke Section 302/149 IPC also did not exist. The conviction of Appellant Nos. 2 to 5 therefore deserves to be altered one under Section 324/149 IPC. It is ordered accordingly. 12. In conclusion the conviction of the Appellant No. 1 is altered from Section 302 IPC to one Section 304 Part II IPC and he is sentenced for a period of five years while other Appellants are sentenced to three years imprisonment. 13. The appeal is dismissed with the modification of conviction and sentence.