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2017 DIGILAW 1993 (RAJ)

DAYA RAM v. STATE OF RAJASTHAN

2017-09-06

DEEPAK MAHESHWARI

body2017
JUDGMENT : Deepak Maheshwari, J. The complainant Devi Lal lodged an FIR at Police Station Mahaveer Nagar, Kota stating that Daya Ram is habitual of eve teasing the girls residing in his mohalla. Daughter of complainant Surja Bai complained against Daya Ram to him in this regard. Then Devi Lal along with his sons Radheyshyam and Mukut Bihari went to the house of Daya Ram on 21.11.2001 at around 8:15 p.m. to persuade him not to eve teasing Surja Bai. Daya Ram objected to it. On some discussion having taken place, he brought knife from his house and assaulted Radheyshyam in his stomach. Rambharos also came along with 'lath'. When Radheyshyam fell down and they tried to pick him, Rambharos made a blow by 'lath' on right wrist and right thigh of Devi Lal. Mukut Bihari also sustained injury on his ring finger of right hand by knife. Bajranglal came to intervene, they took Radheyshyam to the police station first and then to hospital. 2. A case was registered by the SHO, Police Station, Mahaveer Nagar on the FIR and after conducting investigation, charge-sheet came to be filed against accused Daya Ram and Rambharos for the offences punishable under Sections 307, 326, 324, 323, 323/34 and 307/34 IPC. 3. After hearing both the sides, learned trial court framed charges against accused Daya Ram for the offences under Sections 307, 326, 324, 323/34 IPC and against Rambharos for the offences under Sections 307/34, 326/34, 324/34 and 323 IPC. 4. During trial, Daya Ram absconded. Learned trial court proceeded against accused-Rambharos. After conclusion of the trial, judgment came to be passed on 16.11.2002 and accused-Rambharos was convicted for the offences under Sections 307/34, 324/34 and 323 IPC. He was awarded rigorous imprisonment for five years and was imposed a fine of Rs. 1000/- for the offence under Section 307/34 IPC. Default sentence for a period of one month rigorous imprisonment was also passed. He was awarded sentence of rigorous imprisonment for a period of one year and a fine of Rs. 1000/- for the offence under Section 324/34 IPC with default sentence of one month rigorous imprisonment. Rambharos was also convicted for the offence under Section 323 IPC and was awarded a sentence of rigorous imprisonment for a period of six months. All the sentences were to run concurrently. 5. 1000/- for the offence under Section 324/34 IPC with default sentence of one month rigorous imprisonment. Rambharos was also convicted for the offence under Section 323 IPC and was awarded a sentence of rigorous imprisonment for a period of six months. All the sentences were to run concurrently. 5. Accused-Daya Ram was apprehended and prosecution witnesses were again examined in the trial conducted against him. Thereafter, on 19.6.2003 judgment was passed by the learned trial court, whereby accused Daya Ram was convicted for the offences punishable under Sections 307 and 323/34 IPC. He was awarded sentence for a period of five years rigorous imprisonment with a fine of Rs. 1000/- for the offence under Section 307 IPC along with default sentence for a period of one month simple imprisonment. Sentence for six months rigorous imprisonment was awarded for the offence punishable under Section 323/34 IPC. Both the sentences were to run concurrently. 6. Aggrieved by the judgment impugned dated 16.11.2002 and 19.6.2003, both the accused preferred separate appeals. As the appeals have arisen on account of the same incident and FIR, it is deemed appropriate to decide both the appeals by this common order. 7. The appeal preferred by accused-appellant Daya Ram is being taken up first. As per the facts mentioned in the FIR, Devi Lal, Radheyshyam and Mukut Bihari sustained injuries in the alleged incident, which took place on the evening on 21.11.2001 at around 8:15 p.m. PW-4 Devi Lal has deposed in this regard that when he along with his sons Radheyshyam and Mukut Bihari went to the house of Daya Ram to raise objections against the eve teasing of his daughter Surja Bai by Daya Ram, he objected and stated that he would continue doing like this. When discussions took place between them, Daya Ram went inside the house and brought knife on the scene of occurrence and inflicted a blow by knife in the stomach of Radheyshyam. When Mukut Bihari tried to intervene, he also sustained injury on the finger of his hand. Some persons residing nearby rushed to the scene of occurrence after the incident took place. 8. On perusal of the cross-examination of PW-4 Devi Lal, no such statement has come out which makes him an unreliable witness. When Mukut Bihari tried to intervene, he also sustained injury on the finger of his hand. Some persons residing nearby rushed to the scene of occurrence after the incident took place. 8. On perusal of the cross-examination of PW-4 Devi Lal, no such statement has come out which makes him an unreliable witness. He has stated in the cross-examination also that Daya Ram inflicted injury in the stomach of Radheyshyam as soon as he came out of his house. He has of-course, denied to have recorded part 'A' to 'B' of his previous statement Ex.-D/3, wherein it was recorded that he caused the injury by throw of knife. But this improvement in the statement is not very material as the injury was stated to have been caused by knife itself, if not by throwing it. 9. In this regard statement of injured Radheyshyam (PW-3) is most important. He has also stated that when they went to Daya Ram's house, he started abusing them. On persuading him not to repeat the act of eve teasing in future, he came along with the knife from his house and inflicted injury by knife in his stomach. Then he started bleeding and fell down. He has also stated that his younger brother also sustained injury in his hand. PW-3 Radheyshyam has stated that he became unconscious and was taken to the hospital. He remained in hospital for 10-15 days. The police seized his shirt and baniyan vide seizure memo Ex.-P/7. This witness has admitted that Daya Ram and Rambharos also filed a cross FIR against them and they were facing trial thereupon in Criminal Riots Cases Court. He has stated that though an allegation was levelled against them in that case that they had gone to Daya Ram's house to cause injury to him by sword, but nothing of that sort had taken place. In his cross-examination PW-3 has stated that when he called Daya Ram, he came out of his house along with knife and caused injury in his stomach. He has stated that he became unconscious on the spot and recovered his senses the next day. He has admitted the fact that Rambharos did not cause any injury to him, but to his father only. 10. Third injured Mukut Bihari has been examined as PW-1, who has also stated the same facts about the incident. He has stated that he became unconscious on the spot and recovered his senses the next day. He has admitted the fact that Rambharos did not cause any injury to him, but to his father only. 10. Third injured Mukut Bihari has been examined as PW-1, who has also stated the same facts about the incident. He has stated that he sustained injury on the finger of his right hand. During his cross-examination, he has denied the suggestion that they were the aggressors and had gone to the house of Daya Ram to cause injuries. He has admitted that all three of them went to the scene of occurrence after making a discussion among themselves. But this fact has not been got clarified by him that in which regard the discussions were made by them. Some questions have been put to this witness about the length of the knife as also the point of time as to when the accused Daya Ram inflicted injury by knife. The answers given by him to these questions are not very material to impeach the credit worthiness and does not make him an unreliable witness. It is pertinent to note that the important aspect of the defence story which was suggested to him had been denied by him that he was having a sword in his hand by which injury to his brother Radheyshyam was inflicted in the scuffle accidentally when accused Daya Ram saved himself by shifting aside. He has categorically stated that he was not having anything in his hand. It is important to mention here that this suggestion was not put to injured Radheyshyam himself during his cross-examination and therefore, this defence theory does not appear to be true and reliable. 11. During arguments, learned counsel for the accused-appellant Daya Ram has stated that the complainant side was the aggressor, who went to the house of Daya Ram being armed with deadly weapons like sword and 'dhariya'. They called Daya Ram out of his house and inflicted injuries on him. In this regard, he has referred to the admissions made by these prosecution witnesses that they were facing trial in a cross case filed by Daya Ram. It can be observed in this regard that these witnesses have admitted the fact of cross case having been filed against them. In this regard, he has referred to the admissions made by these prosecution witnesses that they were facing trial in a cross case filed by Daya Ram. It can be observed in this regard that these witnesses have admitted the fact of cross case having been filed against them. It is worth noting that in such situation the cross case ought to have been tried along with this case. But on perusal of the record, it is not comprehendible that why these trials continued separately. It is also pertinent to mention that even at the stage of appeal, the facts relating to the cross case including its judgment has not been submitted on behalf of the accused-appellants. In this situation, no weight-age can be attached to this aspect of the argument. 12. Learned counsel has also referred to the statements of defence witnesses DW-1 Ramesh and DW-2 Jagdish, who were examined in the trial conducted against Daya Ram. The statement of these witnesses cannot be given any credence on the ground that they had admitted in the cross-examination that they did not give any such statement to the police as has been deposed by them as defence witnesses. Further, the defence theory which has been put-forth by way of these witnesses was not put to the concerned witness PW-3 Radheyshyam that he sustained injury only because Daya Ram shifted aside and the blow which Mukut Bihari was attempting upon him by 'gupti' hit Radhey-shyam and caused injury. On the contrary, the prosecution story stands proved by ocular and documentary evidence. 13. PW-10 Dr. Rakesh Sharma has stated that while working on the post of medical jurist, he examined the injuries of Devi Lal and Mukut Bihari and prepared their MLRs Ex.-P/14 & Ex.-P/15. The injuries sustained by these persons have been mentioned by him in these MLRs, which corroborate the statements of these injured persons. 14. PW-8 Dr. J.L. Meena has also stated that he was working as an Assistant Professor in Surgical Unit 'C' of MBS Hospital, Kota. He operated Radheyshyam in the emergency ward and cleared 3-4 litrs. of blood clots from his stomach. Thereafter, he observed that there was one wound in right lobe of his liver which went through and through to the stomach of the injured. He has stated that the injury was certainly fatal and could have caused death. He operated Radheyshyam in the emergency ward and cleared 3-4 litrs. of blood clots from his stomach. Thereafter, he observed that there was one wound in right lobe of his liver which went through and through to the stomach of the injured. He has stated that the injury was certainly fatal and could have caused death. He has also stated that intestine had come out. The operation record (Ex.-P/3) has been proved by him. 15. PW-12 Dr. Kedar Lal has also deposed to have examined the injuries of Radhey-shyam. He has given his statement on the basis of bedhead ticket and operation note of the patient. Though he has admitted that these documents were not present before him, but the operation note Ex.-P/3 has been duly proved by PW-8 Dr. J.L. Meena. On the basis of these ocular as well as documentary evidence pertaining to the injuries sustained by Radhey-shyam, Mukut Bihar and Devi Lal, the statements given by these injured persons are fortified. 16. Besides this, PW-7 Dharamraj Singh has deposed about the information given by accused Daya Ram regarding the knife which was used as weapon of offence by him. PW-9 Balkrishna has stated to have recovered the knife through seizure memo Ex.-P/9. PW-14 Prabhu Lal has also corroborated the recovery of knife vide Ex.-P/9. Likewise, PW-15 Ramesh and PW-16 Radheyshyam have corroborated the seizure of T-shirt and shirt vide Ex.-P/7, which injured Radhey-shyam was wearing at the time he sustained injuries. PW-16 Radhey-shyam has stated that there was a cut near second button on the shirt. These recovered clothes and the knife were properly deposited in malkhana of the police station and then were sent for chemical examination to the FSL. The blood group found on the knife was of the same group as was there on the blood stained clothes of the injured Radhey-shyam. This also proves the prosecution story. 17. Learned trial court has properly considered these aspects in the discussions made by it. The defence which has been attempted to be set up against the prosecution case does not appear to be convincing in light of the affirmative evidence adduced by the prosecution. The statements of injured witnesses are found to have been duly fortified by the remaining prosecution evidence. 18. Learned counsel for the accused-appellant has argued that no independent witness has been examined in this case. Factually, it appears to be true. The statements of injured witnesses are found to have been duly fortified by the remaining prosecution evidence. 18. Learned counsel for the accused-appellant has argued that no independent witness has been examined in this case. Factually, it appears to be true. But simply the absence of independent witness cannot be a ground to discard the prosecution case, if the statements given by the injured persons are reliable and properly corroborated by the remaining evidence. In view of the above, the judgment passed by the learned trial court with regard to accused-appellant Daya Ram is found to be prefect. The conviction recorded against Daya Ram for the offences punishable under Sections 307 and 323 r/w Section 34 IPC is based on the reliable prosecution evidence. There is no ground to interfere therein. 19. So far as the sentence imposed upon accused Daya Ram is concerned, looking to the nature and gravity of the offence this also appears to be proportionate. No cogent reason has been given on behalf of the accused-appellant to interfere in this aspect also. In the result, the appeal preferred by the accused-appellant Daya Ram does not deserve to be allowed and is accordingly dismissed. 20. In so far as the appeal preferred on behalf of Rambharos, the most important aspect in this regard is the statement of PW-9 injured Radhey-shyam. The charge for the offence under Section 307/34 IPC has been framed against him in regard to the injuries sustained by Radhey-shyam. He has stated that Daya Ram replied that he would continue doing the eve teasing as per his own wishes. Then he inflicted blow by knife on his stomach. He started bleeding from the injury and fell down. Then the other accused Rambharos inflicted injury by 'lath' on the hand and thigh of his father. During cross-examination PW-9 Radhey-shyam has admitted the suggestion that accused-Rambharos came from his house after Daya Ram had inflicted injury upon him by knife. It is thus clear that there was no common intention on the part of accused-Rambharos with Daya Ram for inflicting injury by knife on Radheyshyam. Other prosecution witnesses PW-5 Mukut Bihari and PW-7 Devi Lal have also not deposed anything, which could indicate that accused Rambharos was having any common intention with Daya Ram for inflicting injury by knife upon Radheyshyam. Other prosecution witnesses PW-5 Mukut Bihari and PW-7 Devi Lal have also not deposed anything, which could indicate that accused Rambharos was having any common intention with Daya Ram for inflicting injury by knife upon Radheyshyam. It is true that accused Rambharos was present on the scene of occurrence and has also participated in the scuffle but the participation of Rambharos is found prove only to the extent of causing injury by 'lath' on Devi Lal. The injuries sustained by Devi Lal are simple in nature as per the statement of PW-13 Dr. Rakesh Sharma and MLR Ex.-P/14. There is no evidence available on record to the effect that accused-Rambharos was having any common intention with Daya Ram for inflicting injury by knife upon Radhey-shyam, which proved to be fatal. No evidence of prior meeting of mind or premeditation between two accused for inflicting such fatal injury has come on record. Learned trial court, simply on the basis that accused Rambharos was also present on the scene of occurrence and had participated in the scuffle, arrived at the conclusion that he was also liable for the injury caused by Daya Ram. 21. In my considered view, in absence of the evidence of any premeditation between two accused and the common intention, accused-Rambharos could not have been fastened with the liability with the aid of Section 34 IPC. As per the prosecution evidence, Rambharos has inflicted injuries on injured Devi Lal only, which were caused by blunt weapon and were found simple in nature. Hence, the conviction recorded qua the accused-appellant Rambharos for the offence under Section 323 IPC can only be sustained. So far as the conviction of accused-appellant Rambharos for the offences under Section 307 r/w Section 34 IPC and Section 324 r/w Section 34 IPC as also the sentences awarded for these offences are concerned, the judgment impugned is not sustainable. In the result, judgment impugned dated 16.11.2002 passed by the learned trial court is sustained only to the extent of the conviction recorded for the offence under Section 323 IPC qua accused-Rambharos. Rest of the judgment is quashed and set-aside. 22. Now adverting to the question of sentence awarded to accused-Rambharos for the offence under Section 323 IPC, it is pertinent to note that the occurrence took place almost 16 years ago. Rest of the judgment is quashed and set-aside. 22. Now adverting to the question of sentence awarded to accused-Rambharos for the offence under Section 323 IPC, it is pertinent to note that the occurrence took place almost 16 years ago. Accused-Rambharos has faced the trauma of criminal proceedings for a very long period, now he has grown in advanced age. On perusal of the record, the facts stated by learned counsel appearing for Rambharos are verified that he had undergone the custody from 23.11.2001 to 19.12.2001. Thereafter, from the date of judgment dated 16.11.2002, he had been in custody up till 24.1.2003 when the sentence awarded to him was suspended. Thus, the total period of custody comes to be 97 days. Taking these facts into consideration, the prayer made by learned counsel for the accused-appellant Rambharos appears to be reasonable that the term of sentence awarded to Rambharos may kindly be reduced to the period already undergone by him in custody. Accordingly, the sentence for the offence under Section 323 IPC awarded to accused-appellant Rambharos is reduced to the period of custody already undergone by him. 23. Thus, the appeal preferred by accused-appellant Rambharos is partly allowed as stated above and the appeal preferred by accused-appellant Daya Ram is rejected. 24. Appeal No. 552 of 2004 dismissed/Appeal No. 1598 of 2002 partly allowed.