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2017 DIGILAW 2214 (RAJ)

Ram Prasad v. State of Rajasthan

2017-10-23

GOPAL KRISHAN VYAS, MANOJ KUMAR GARG

body2017
JUDGMENT : Gopal Krishan Vyas, J. 1. In both these appeals filed by the appellants, Ram Prasad S/o Chhotu, Chhotu Lal S/o Ramdev and Raju S/o Naru @ Narayan Luhar, the judgment dated 27th of September 2012 passed by learned Addl. Sessions Judge, Shahpura, District Bhilwara, in Session Case No. 13/2010 is under challenge. In the aforesaid judgment, the learned trial court convicted the accused appellants Ram Prasad and Raju for offences under Sections 302 read with 120B (1) and 341 and 392 of IPC and accused Chhotu for offence under Sections 302 read with 120B (1) and 341 IPC and passed following sentence against them, which reads as under: 302 of IPC Imprisonment for life along with fine of Rs. 10,000/-. In default of payment of fine, to further undergo six months' additional imprisonment. 120B (1) of IPC Imprisonment for life along with fine of Rs. 10,000/-. In default of payment of fine, to further undergo six months' additional imprisonment. 341 of IPC A Fine of Rs. 500/-. In default of payment of fine, to further undergo fifteen days' additional simple imprisonment. Appellants-Ram Prasad and Raju: 392 of IPC Seven Years' Rigorous Imprisonment and a fine of Rs. 10,000/-. In default of payment of fine to further undergo six months' additional rigorous imprisonment. 2. As per facts of the case, on 09.07.2010 at 05.00 PM complainant Hemraj Gurjar (PW-14) submitted a written report (Ex.P/1) at Police Station Shahpura, District Bhilwara. Appellants-Ram Prasad and Raju: 392 of IPC Seven Years' Rigorous Imprisonment and a fine of Rs. 10,000/-. In default of payment of fine to further undergo six months' additional rigorous imprisonment. 2. As per facts of the case, on 09.07.2010 at 05.00 PM complainant Hemraj Gurjar (PW-14) submitted a written report (Ex.P/1) at Police Station Shahpura, District Bhilwara. In the complaint, following allegations were levelled: ^^lsok esa] Jheku Fkkukf/kdkjh lkgc iqfyl Fkkuk 'kkgiqjk ftyk HkhyokM+kA izkFkhZd & gsejkt firk vEckyky xqtZj fuoklh cN[ksM+k Fkkuk Qqfy;k dykaA fo"k; & dkuwuh dkjokbZ djokus ds lEcU/k esaA egksn; th] mijksDr fo"k; esa fuosnu gS fd vkt fnuakd 09-07-2010 dks djhc 5 cts eSa o esjk cMs+ nknk dk yM+dk jkes'oj firk xksiky xqtZj nksuksa gekjs ckxM+k ukeh [ksrksa ij cqokbZ djk jgs Fks rc ewyk firk Nxuk Hkhy fuoklh cN[ksM+k us gesa crk;k fd rsjs dkdk lwjtdjk firk [kkuk xqtZj ds lkFk ekjihV jkeizlkn /kksch o mlds lkFk okyksa us dh gS tks xqgyk o eh.kksa dh dksVM+h ds chp taxy esa HkksMy dh [kkuksa ds ikl ?kk;y iM+k gS esjs Qksu vk;k rqEgsa cqyk jgs gS ftl ij eSa o jkes'oj nksuksa [ksr ls eksVjlkbZfdy ij cSBdj HkksMy dh [kkuksa ds ikl igqaps rks jkLrs esa esjs dkdk dh eksVjlkbZfdy uhps iM+h gqbZ Fkh mlls FkksM+h lh nwj jksus fpykus dh vkokt vkbZ rks ge nksuksa ogka igaqps tgka ij esjk dkdk [kwu ls yFkiFk iM+k gqvk Fkk ftlds ikl xksVw firk mxek Hkhy] lkaojk firk feJjh cSjok fuoklh cN[ksM+k o iIiw flag jktiwr fuoklh eh.kk dh dksVM+h ekStwn Fks esjk dkdk cksy jgk Fkk ftldks geus iwNk rks mlus crk;k fd ?kkVkjkuh esa dks;ys dk Vªd Hkjok dj xksVw Hkhy o lkaojk cSjok dks eksVjlkbZfdy ij ihNs fcBk dj xkao cN[ksMk vk jgk Fkk djhc lk<+s 4 cts xqgyk dksVM+h ds taxy esa HkksMy dh [kku ds ikl igqapk tgka jkLrs esa jsr gksus ls eksVj lkbZfdy /khjs dh rks lkeus ls vaxzsth ccwyksa dh vksV esa fNik gqvk jkeizlkn firk NksVw /kksch] fuoklh cN[ksM+k ftlds gkFk es yksgs dk ikbZi Fkk fudy dj vpkud esjs lkeus vk x;k o esjs ij ikbZi ls okj fd;k rks eSa cp x;k o eksVj lkbZfdy fxj xbZ eSa tku cpk dj Hkkxus yxk rks ihNs ls vaxzsth ccqyksa esa Nqis gq, NksVw firk jkenso xqtZj fuoklh cN[ksM+k rFkk jktiwr fygkj fuoklh ljnkj uxj fudy dj ihNs Hkkxs ftuds gkFkksa esa Hkh yksgs ds ikbZi Fks jkeizlkn /kksch us esjs lkFk okyksa xksVw Hkhy o lkaojk cSjok dks /kedh nh fd rqe nksuksa ogka ls Hkkx tkoksa ojuk rqEgs Hkh ekj nsaxs xkao esa tkdj fdlh dks er crkuk vkt ge lwjtdj.k dks ekj nsaxs o nksuks Mj ds ekjs Hkkx x;s rFkk ;g rhuksa gh esjs ihNs Hkkxs FkksM+h nwj vkxs tkus ij ls [kyh esa Bksdj [kkdj fxj x;k rks esjs ihNs vk;s jkeizlkn /kksch] NksVw xqtZj o jktw yqgkj us yksgs ds ikbZi ls tku ls ekjus dh fu;r ls rkcMrksM geyk dj fn;k rFkk esjs pkjksa gkFk iSj rksM fn;s ftlls esjs 'kjhj ls [kwu fudyus yx x;k eq>s ejk gqvk le> dj pys x;s tks eksVj lkbZfdy ls Hkkxs ftldh vkokt eSaus lquh FkhA mlds ckn esjs dkdk lwjtdj.k dk dkQh [kwu og tkus ls og csgks'k gks x;k Fkk mlds ckn esjs dkdk lwjtdj.k dk dkQh [kwu cg tkus ls og csgks'k gks x;k Fkk mlds ckn esjk NksVk HkkbZ flyw Hkh ogka vk x;k ftlus gekjs fcokbZ xksiky firk xksek xqtZj fuoklh vkj.kh dks oSu ysdj ekSds ij vkus ds fy, Qksu fd;k tks djhc 7 cts ogka igaqpk mlls igys vkSj dksbZ lk/ku ugha vk;k Fkk fQj geus xksiky dh oSu esa lwjtdj.k dks Mkydj 'kkgiqjk gkWLihVy yk;s ogka ykus ds ckn 8-45 cts lwjtdj.k dh ekSr gks xbZ gS esjs dkdk ds lkFk jkeizlkn /kksch] NksVw xqtZj] jktw yqgkj us yksgs ds ikbiksa ls xaHkhj pksVsa igqapk dj mldh gR;k dj nh gS fjiksVZ is'k gS] dkuwuh dkjokbZ djkus dh d`ik djsA** 3. Upon the aforesaid written complaint, F.I.R. No. 122/2010 was registered and investigation commenced. During investigation, the postmortem of the body of deceased, Surajkaran, was conducted by the Medical Board at Shahpura Hospital and postmortem report (Ex.P/6) was prepared and was handed over to the investigating officer. After postmortem, the dead body was handed over to the family members for cremation vide Ex.P/4. The 'Panchnama' of the dead body was prepared vide Ex.P/2. The blood stained clothes of the deceased were taken in possession by the investigating officer vide Ex.P/3. Requisite proceedings upon the place of occurrence were conducted by the investigating officer. Accused appellants Raju S/o Narayan by caste Luhar, Ram Prasad and Chhotulal were arrested vide Ex.P/44, Ex.P/45 and Ex.P/46 respectively. The investigating officer while conducting investigation, recovered iron pipe upon the information given by accused Ram Prasad vide Ex.P/23. Another iron pipes were recovered as per information given by accused Raju and Chhotu Lal vide Ex.P/25 and Ex.P/27 respectively. During investigation vide Ex.P/29 other articles viz. silver 'Kadaliya' were recovered upon the information given by accused appellant Ram Prasad Dhobi, and two gold earrings were recovered vide Ex.P/30. 4. After investigation, charge sheet was filed against five accused persons, namely, Ram Prasad, Chhotu Lal, Raju, Satish Pandey and Bherulal Mali in the court of Chief Judicial Magistrate, Shahpura, from where the case was committed for trial to the court of Addl. Sessions Judge, Shahpura, District Bhilwara. Out of five accused, two accused persons, namely, Satish Pandey and Bherulal, absconded, therefore, their bail bonds were forfeited and arrest warrant was issued against them and separate trial was ordered to be conducted against the accused appellants, Ram Prasad, Chhotu Lal, and Raju. 5. The learned trial court after providing opportunity of hearing to the appellants framed charges against them for the offences under Sections 147, 341, 392, 397, 302, 120B and 149 of IPC, which the appellants denied and claimed trial. 6. To prove the prosecution case, statements of 37 prosecution witnesses were recorded and 76 documents were exhibited. The learned trial court after recording the evidence of prosecution proceeded to record the statements of the accused appellants under Section 313 Cr.P.C. 1973 in which they denied the allegations of the prosecution witnesses and said that they were falsely implicated by the prosecution and no evidence was led by them in their defence. 7. The learned trial court after recording the evidence of prosecution proceeded to record the statements of the accused appellants under Section 313 Cr.P.C. 1973 in which they denied the allegations of the prosecution witnesses and said that they were falsely implicated by the prosecution and no evidence was led by them in their defence. 7. The learned trial court after hearing the learned counsel for the parties acquitted the accused appellants from the charges levelled against them under Section 147, 397 of IPC and acquitted the accused appellant Chhotulal from offence under Section 392 of IPC vide judgment dated 27.09.2012, however, held the accused appellants guilty for committing offence under Sections 302 r/w 120B (1) and 341 of IPC. Accused appellant Ram Prasad and Raju were held guilty for committing offence under Section 392 of IPC. The said judgment is under challenge in these appeals. 8. At the threshold, learned counsel appearing on behalf of appellants submit that appellants are not challenging the incident, which took place on 09.07.2010 at 04/05.00 PM in between the forest of village 'Guhala' and 'Meeon-Ki-Kotri' and stated that finding of guilt recorded by the learned trial court for offence under Section 302 r/w 120B (1) of IPC is not sustainable in law because there is no evidence of motive and as per finding of learned trial court, it was an incident of robbery, therefore, the learned trial court held two accused appellants, namely, Ram Prasad and Raju, guilty for offence under Section 392 of IPC. If the cause of incident was robbery, then there is no question to hold the accused appellants guilty for offence under Section 302 IPC because offence cannot travel beyond offence under Section 304 Part-I of IPC. 9. Learned counsel for the appellants further argued that as per postmortem report (Ex.P/6) conducted by the Medical Board, and statements of Dr. Kalicharan (PW-7) and Dr. Dinesh Kumar (PW-8), none of the injuries or fracture were found upon the vital part of the body and all the injuries/fractures were either upon leg or upon hand, therefore, it is obvious that there was no intention of the accused appellants to kill the deceased. 10. Kalicharan (PW-7) and Dr. Dinesh Kumar (PW-8), none of the injuries or fracture were found upon the vital part of the body and all the injuries/fractures were either upon leg or upon hand, therefore, it is obvious that there was no intention of the accused appellants to kill the deceased. 10. The crux of the argument of learned counsel for the appellants is that for robbery the deceased was assaulted by the accused appellants and it resulted into his death and, therefore, the finding of conviction recorded by the learned trial court for offence under Section 302 IPC deserves to be altered to offence under Section 304 Part-I of IPC. Learned counsel for the appellants further argued that the accused appellants were acquitted from the charge levelled against them under Sections 397, 147 and 341 of IPC, therefore, in absence of any evidence of motive, and considering the fact that none of the injuries were found upon the vital part of person of the deceased, the finding recorded by the trial court for offence under Section 302 r/w 120B (1) IPC is not sustainable in law. 11. Learned counsel for the appellants submitted that in absence of any evidence of motive and in absence of any evidence of inflicting injuries upon vital part of the body and in absence of specific allegation of inflicting particular injury upon the person of deceased, it cannot be said that the prosecution has proved its case for offence under Section 302 IPC. According to learned counsel for the appellants, the offence cannot travel beyond offence under Section 304 Part-I r/w 120B (1) of IPC and, therefore, the appellants are raising their voice to the extent of their conviction under Section 302 r/w 120B (1) of IPC. No other arguments are advanced by the learned counsel for the appellants with regard to recovery of articles and weapon (iron pipes). No other arguments are advanced by the learned counsel for the appellants with regard to recovery of articles and weapon (iron pipes). In support of his arguments, learned counsel for the appellants invited our attention towards judgment of Hon'ble Apex Court in the case of Arjun and Another vs. State of Chhattisgarh, AIR 2017 SC 1150 and judgment of Hon'ble Apex Court in the case of State of Rajasthan vs. Poonaram and Others, AIR 2017 SC (Cri.) 144 and submit that in both these cases, the Hon'ble Apex Court held that in absence of any evidence of motive, conviction under Section 302 IPC is not sustainable and the accused can be convicted only for the offence under Section 304 Part I of IPC. They, therefore, argued that conviction recorded by the learned trial court for offence under Section 302 IPC may kindly be altered to offence under section 304 Part-I r/w 120B (1) of IPC and the sentence awarded by the trial court may also be reduced to the period already undergone. 12. Per contra, learned Public Prosecutor vehemently opposed the submissions made by the learned counsel for the appellants and it is stated by him that it is a case in which innocent person was killed by the accused appellants while inflicting 12 injuries upon the body of the deceased, that too, by iron pipes, therefore, intention can be gathered from the number of injuries caused to the person of the deceased. Thus, it cannot be said that the prosecution has failed to led any evidence of motive. 13. Learned Public Prosecutor further argued that on the one hand the appellants are not challenging the incident and on the other hand, they are claiming that as per evidence on record, offence cannot travel beyond offence under Section 304 Part-I r/w 120B (1) of IPC, but such type of arguments has not legal sanctity, because as per postmortem report and statements of Medical Board, viz. PW-7 and PW-8 (Dr. Kalicharan and Dr. Dinesh Kumar), 12 injuries in the form of fractures were found upon the body of the deceased, may not be on vital part of the body, but the fact remains that the deceased was assaulted by accused appellants and this fact is not disputed by the accused appellants. PW-7 and PW-8 (Dr. Kalicharan and Dr. Dinesh Kumar), 12 injuries in the form of fractures were found upon the body of the deceased, may not be on vital part of the body, but the fact remains that the deceased was assaulted by accused appellants and this fact is not disputed by the accused appellants. Learned Public Prosecutor further submits that in such type of cases, the finding of trial court is not required to be disturbed and the appeals may kindly be dismissed. 14. After hearing the learned counsel for the parties, we have perused the entire evidence on record and considered the prayer made by the accused appellants to alter the conviction from offence under Section 302 r/w 120B (1) of IPC to offence under Section 304 Part-I r/w 120B (1) of IPC. 15. Upon assessment of entire evidence of the case, following facts emerges, which have been proved by the prosecution: (A) There is no direct evidence of motive to kill the deceased on record because as per finding of the trial court, the deceased was assaulted only to commit offence of robbery and this fact is not disputed by the prosecution. More so, the charge sheet was filed against accused appellants for offence under Sections 397, 392 r/w 120B of IPC also. Admittedly, the appellants are not challenging the incident and their prayer is limited to alter their conviction from offence under Section 302 r/w 120B (1) of IPC to offence under section 304 Part-I r/w 120B (1) of IPC. Upon consideration of entire evidence, we are of the opinion that there is no direct evidence of motive and as per evidence on record, the incident occurred for robbery, in which all the three appellants inflicted injuries on the person of deceased by iron pipes, which resulted into his death. (B) The appellants are not disputing recovery of weapon viz. iron pipes and other articles which were recovered upon their information. The prosecution is also not disputing the fact that the intention of the accused appellants was to commit robbery and not murder of the deceased because there was no enmity between the parties, therefore, it is a case of culpable homicidal not amounting to murder coupled with robbery. iron pipes and other articles which were recovered upon their information. The prosecution is also not disputing the fact that the intention of the accused appellants was to commit robbery and not murder of the deceased because there was no enmity between the parties, therefore, it is a case of culpable homicidal not amounting to murder coupled with robbery. Therefore, the finding recorded by the trial court for offence under section 302 r/w 120B (1) of IPC is not sustainable in law because the offence cannot travel beyond offence under Section 304 Part-I r/w 120B (1) of IPC. 16. We have also considered the injuries mentioned in the postmortem report (Ex.P/6), so also, injuries described by the doctors in their statements. In all 12 injuries were found upon the person of deceased, Surajkaran and all the injuries were on non-vital part of the body. The fractures were on the leg and hands, therefore, it is obvious that there was no intention of the accused appellants to cause death of the deceased otherwise they would have inflicted injuries upon the vital parts of the body viz. head or chest by iron pipes. 17. Admittedly, the trial court acquitted the accused appellants from the charges under Sections 397 and 147 but convicted them for offence under Sections 341, 392 and 302 r/w 120B (1) of IPC. Thus, it is a case in which prosecution has come out with the evidence that incident took place for robbery, in which due to injuries caused by the accused appellants, the deceased died. 18. To consider the prayer of the appellants to alter their conviction from offence under Section 302 r/w 120B (2) of IPC to 304 Part-I r/w 120B (1) of IPC, we have also considered the judgments cited by the learned counsel for the appellants. In the case of Arjun and Another (supra), the Hon'ble Court held as infra:- "22. The accused, as per the version off PW-6 and eye witness account off other witnesses, had weapons in their hands, but the sequence off events that have been narrated by the witnesses only show that the weapons were used during alteration in a sudden fight and there was no premeditation. Injuries as reflected in the post-mortem report also suggest that appellants have not taken undue advantage or acted in a cruel manner. Injuries as reflected in the post-mortem report also suggest that appellants have not taken undue advantage or acted in a cruel manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC. 23. When and if there is intent and knowledge, then the same would be a case off Section 304 Part I IPC and if it is only a case off knowledge and not the intention to cause murder and bodily injury, then the same would be a case off Section 304 Part II IPC. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part-I IPC. The conviction off the appellants under Section 302 read with Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 2nd March, 2016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed, for the modified conviction under Section 304 Part I IPC, the sentence is modified to that off the period already undergone. 24. In the result, conviction off the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 Part I IPC and the sentence is reduced to the period already undergone and these appeals are partly allowed accordingly. The appellants are ordered to be released forthwith unless required in any other case. 25. Fee off the learned Amicus is fixed as per Rules." 19. The appellants are ordered to be released forthwith unless required in any other case. 25. Fee off the learned Amicus is fixed as per Rules." 19. Recently, the Hon'ble Apex Court in the case of State of Rajasthan vs. Poona Ram (supra), while considering the appeal filed by the State of Rajasthan against the judgment dated 21.09.2005, did not accede to the prayer of State to convict the accused respondents for offence under section 302 IPC, who were convicted for offence under section 304 Part-I of IPC, but while considering 33 injuries and the fact that evidence of motive was absent, altered the conviction from offence under section 304 Part-II to offence under section 304 Part-I of IPC only. The following adjudication was made by the Hon'ble Apex Court in the case, which reads thus: "5. On behalf off the appellant State, we were shown the medical evidence consisting off deposition off the doctor, PW-24 who had found total 33 injuries, including fracture, injuries on the head and on sixth to eighteen ribs. There was lacerated wound on right lung. The death, in the opinion off the doctor was due to head injury and injury to the right lung. The injuries were also found sufficient to cause death. On the basis off the same, it has been submitted that the trial court committed no error in inferring an intention on the part off the accused persons to cause death off the deceased by inflicting so many injuries and, hence the High Court should not have taken a lenient view as done in the order under appeal. He further submitted that even if the intention to cause death cannot be specifically and clearly attributed to the accused persons, they ought to have been convicted for the offence under Section 304-I and more stringent sentence should have been imposed. 6. On the other hand, Ms. Aishwarya Bhati, learned counsel appearing for the respondents highlighted the facts noticed above for submitting that in the absence off any specific allegation as to who caused fatal injuries on the head and ribs, all the accused persons cannot be held guilty off offence under Section 302 IPC because it cannot be said with certainty that they shared a common intention off causing death. None off them had uttered any words to disclose such a intention, nor had they come prepared for such offence by carrying fire arms or any lethal weapon. She further submitted that even if the allegation that the accused persons were under influence off liquor is accepted, it does not aggravate the offence and it will not be appropriate in the facts off the case to hold that they all shared any common intention off causing death. 7. Having considered all the relevant materials and the impugned judgment, as well as the rival contentions, we are off the view that the High Court erred in applying Section 304-II to the offence at hand. Section 304-I off the IPC would clearly cover such an offence where the accused persons caused indiscriminate assault and some off the injuries proved fatal. By the rashness off their act, the accused persons must be treated to be fully in know off the consequence off their acts including possible death. Hence, in the facts off the case, we set aside the impugned judgment and order under appeal and convict the respondent Nos. 1 to 4 for offence under Section 304 Part-I off the IPC. The facts off the case and the ends off justice require that the accused persons should serve at least eight years off rigorous imprisonment and also pay a fine off Rs. 25,000/- (Rupees twenty five thousand) each and in default undergo further rigorous imprisonment for six months. We order accordingly. If the fine is realised, the same should be paid as compensation to the heirs off the deceased, if any." 20. Upon consideration of the evidence of the case in hand and the judgments of the Hon'ble Apex Court, referred supra, we are of the opinion that finding of conviction recorded by the learned trial court against the appellants for the offence under Sections 302 r/w 120B (1) IPC is not sustainable in law because offence cannot travel beyond offence under section 304 Part-I of IPC r/w 120B (1) IPC. 21. 21. The appellants are not challenging the conviction and sentence passed against them for offence under section 341 and 392 IPC, therefore, in view of judgment in the case of Poona Ram (supra), the conviction of the appellants for offence under Section 302 read with 120B (1) of IPC deserves to be altered to the offence under Section 304 Part-I and 120B (1) of IPC. 22. Consequently, both the criminal appeals are hereby partly allowed. The conviction of the accused appellants for offence under Sections 302 and 120B (1) IPC is hereby altered to offence under section 304 Part-I read with Section 120B (1) of IPC and the sentence of life imprisonment imposed for both the offences, is hereby reduced to ten years' rigorous imprisonment along with fine of Rs. 75,000/- (each). In default of payment of fine, the appellants shall undergo one year additional rigorous imprisonment. In the event of deposition of fine amount, the same shall be disbursed to the wife of the deceased, or if wife is not survived, then it may be disbursed to the legal heirs of the deceased, if any.