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2017 DIGILAW 2035 (RAJ)

BANSHI LAL v. STATE OF RAJASTHAN

2017-09-11

DEEPAK MAHESHWARI

body2017
JUDGMENT : Deepak Maheshwari, J. This appeal has been preferred on behalf of 35 accused appellants Banshi Lal, Nanakram and Ramu to assail the judgment dated 28.03.1995 whereby learned trial court has convicted the accused Ramu for the offence under Section 325 IPC and awarded the sentence of one year rigorous imprisonment along with fine of Rs. 500/-. Default sentence for two months simple imprisonment was also awarded. Accused Nanag Ram and Banshi were convicted under Section 323 IPC but both of them were given benefit of the probation under section 3 of Probation of Offenders Act ('the Act') in regard to the aforesaid conviction. Accused Ramu was acquitted for the offence under Sections 307 and 452 IPC. Accused Nanag Ram and Banshi were acquitted for the offence under Section 307/34 and 452 IPC. 2. None came present on behalf of accused-appellants to argue the appeal. 3. I critically examined the judgment impugned dated 28.03.1995 in light of the material available on record. Briefly stated, the prosecution story is that Raj Kumari and Kamla, daughters of Kanhaiya Lal were married to accused Banshi and Nanag Ram about 5 years ago. On 15.06.1994 at about 7 p.m. Banshi, Nanag Ram and Ramu entered into the house of complainant Kanhyaiya Lal being armed with 'lathis' and objected as to why Raj Kumari was not sent to their house along with money demanded. All the accused started beating Chaman Lal and assaulted upon his head by 'lathi'. He started bleeding and also sustained injury on his left elbow and over his left eye. 4. Learned trial court framed the charges for the offence under Section 307 and 452 IPC against accused Ramu and for the offence under Sections 307/34, 323 and 452 IPC against Nanag Ram and Banshi. They denied the charges and claimed trial. After concluding the trial, learned trial court proceeded to convict the accused-appellants and sentenced them as stated above. 5. On perusal of the judgment impugned it is found that after elaborate discussion of the prosecution evidence, learned trial court has observed that PW-1 Kanhaiya, PW-2 Hanuman, PW-3 Babulal, PW-4 Khemchand, PW-6 Kesar were not considered as eye witnesses of the incident. Learned trial court has concluded that they reached on the spot after the incident had taken place. 5. On perusal of the judgment impugned it is found that after elaborate discussion of the prosecution evidence, learned trial court has observed that PW-1 Kanhaiya, PW-2 Hanuman, PW-3 Babulal, PW-4 Khemchand, PW-6 Kesar were not considered as eye witnesses of the incident. Learned trial court has concluded that they reached on the spot after the incident had taken place. Only injured PW-9, Chaman Lal and his sister PW-7, Raj Kumari were found to be present at the time of the incident. 6. As per the statement of PW-14, Dr. H.L. Bairwa who examined injured Chaman Lal and prepared his MLR Ex. P/17, learned trial court has concluded that Chaman Lal sustained three injuries, on his head, left eye and left elbow. Learned trial court has also observed that though PW-14, Dr. H.L. Bairwa, has opined that the injury sustained on the parietal region of Chaman Lal was dangerous to life but neither the operation note, on the basis of which this injury was opined to be dangerous to life nor the doctor who operated upon Chaman Lal has been examined by the prosecution. The operation note and the X-Ray report have also not been proved in absence of the examination of Radiologist as also the doctor who operated upon. Chaman Lal. Learned trial court has only observed that in the facts and circumstances of the case, it can be presumed that the injury found on the head of Chaman Lal was grievous in nature. This presumption drawn by learned trial court goes contrary to its own observation that in absence of the examination of Radiologist and proof of X-Ray Plate, X-Ray report had been found proved. The observation made by learned trial court that the injury on parietal region can be considered as grievous is not based on logical ground. There is no evidence available on the record to sustain this conclusion, hence, the conviction recorded against accused Ramu for the offence under Section 325 IPC cannot be sustained. On the basis of the statement of PW-14 Dr. H.L. Bairwa and MLR Ex. P/17, the offence only to the extent of 323 IPC is found proved against accused-appellant Ramu. 7. In view of the above, the conviction recorded by learned trial court qua accused-appellant Ramu for the offence under Section 325 is converted into the offence under Section 323 IPC. H.L. Bairwa and MLR Ex. P/17, the offence only to the extent of 323 IPC is found proved against accused-appellant Ramu. 7. In view of the above, the conviction recorded by learned trial court qua accused-appellant Ramu for the offence under Section 325 is converted into the offence under Section 323 IPC. Co-accused Nanag Ram and Banshi were extended the benefit under Section 3 of the Act by learned trial court for the offence proved against them under Section 323 IPC, hence accused-appellant Ramu is also found entitled to the same benefit, 8. In view of the above, the conviction and the sentence awarded to the accused Ramu is for the offence punishable under Section 325 IPC is quashed and set aside and while convicting him for the offence under Section 323 IPC, the benefit under section 3 of the Probation of Offenders Act is extended to him also. 9. In the result the appeal is partly allowed as stated above.