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2017 DIGILAW 622 (RAJ)

Ram Kumar S/o Sahi Ram v. State of Rajasthan

2017-02-23

GOPAL KRISHAN VYAS, KAILASH CHANDRA SHARMA

body2017
JUDGMENT : Kailash Chandra Sharma, J. In both the Cr. Appeals (D.B. Cr. Appeal No.765/2015 and D.B. Cr. Appeal No.876/2015) the judgment dated 5.8.2015 passed by the learned Addl. Sessions Judge, Sangariya, District Hanumangarh in Sessions Case No.24/2013 is under challenged. D.B. Cr. Appeal No.765/2015 has been challenged by the accused appellants Ram Kumar and Kuldeep to challenge their conviction and sentence passed against them by the trial court in Sessions Case No.24/2013 vide judgment dated 5.8.2015 for the following offences : Under Section 304 Part II r/w Section 34 IPC 10 years RI with fine of Rs.60000/- and in default of payment of fine to further undergo one year imprisonment. Under Section 323/34 IPC Three months SI with fine of Rs.500/- and in default of payment of fine to further undergo 10 days SI. D.B. Cr. Appeal No.867/2015 has been filed by the complainant Praveen Kumar wherein a prayer has been made by the complainant-appellant so as to held respondents Ram Kumar and Kuldeep guilty for the offence under Section 302 read with Section 34 IPC instead of 304 Part II and read with Section 34 IPC. 2. As per brief facts of the case, on the basis of written report (Ex.P/1) lodged by the complainant, the SHO Police Station Sangariya registered FIR no.581 on 8.9.2013 (Ex.P/2) under Section 302 and 34 IPC against the accused appellants Ram Kumar and Kuldeep. In the FIR, the complainant Praveen Kumar alleged that on 8.9.2013 at about 4.00 pm in the evening when he with his father Shahb Ram (deceased) was removing the water tanks from the place, kept reserved for their shop, the accused Ram Kumar and Kuldeep came there, having iron rod in hands and with intention to commit murder of his father Shahb Ram and inflicted injury by the iron rod. The accused Kuldeep inflicted injury upon head, which is vital part of the body of his father by iron rod and as a consequence thereof, his father fell down, at that time, when complainant tried to rescue his father, accused Kuldeep inflicted injury upon his head by iron rod. Due to injuries caused, he fell down. The complainant Pradeep Kumar took his father to the Sangariya Hospital for treatment where doctor declared his father dead. 3. Due to injuries caused, he fell down. The complainant Pradeep Kumar took his father to the Sangariya Hospital for treatment where doctor declared his father dead. 3. After commencement of investigation, the investigating officer first of all conducted investigation at the place of occurrence and thereafter went to the hospital. The details of dead body were recorded in the Government Hospital, Sangariya on 19.9.2013 vide Ex.P/4 in the presence of two witnesses Prithvi Ram and Surendra Nath. The Panchayatnama of the dead body was also prepared on the same day in front of four witnesses. The accused Ram Kumar was arrested on 9.9.2013 vide Ex.P/17 and accused Kuldeep was arrested on 17.9.2013 vide Ex.P/18. After arrest, an information was given by the accused Kuldeep under Section 27 of the Evidence Act on 17.9.2013 at 4.00 am, in pursuance of said information, the iron rod was recovered on 17.9.2013 at 5.00 pm vide Ex.P/6. The site plan of the place where iron road was recovered was also prepared vide Ex.P/7 and details of site were recorded vide Ex.P/7A. No weapon was recovered from accused Ram Kumar. 4. The SHO Police Station Sangariya after investigation field charge-sheet against the accused appellant Kuldeep and Ram Kumar under Section 302, 323 read with Section 34 IPC in the court of learned Addl. Chief Judicial Magistrate, Sangariya from where the case was committed to the court of Addl. District & Sessions Judge, Sangariya, District Hanumangarh for trial. In the trial, after providing an opportunity of hearing, the learned trial court framed charge against the accused Kuldeep and Ram Kumar. 5. Both the accused appellants denied the charges and prayed for trial. In the trial, statements of 11 prosecution witnesses were recorded to support the prosecution case and 19 documents were exhibited to prove the charge, thereafter, the statements of accused appellants under Section 313 Cr.P.C. were recorded in which they denied the allegations levelled against them by the prosecution witnesses but no evidence was produced in defence. The learned trial court after hearing the final arguments, both the accused Ram Kumar and Kuldeep were held guilty and convicted for the offence under Sections 304 Part II read with Section 34 and under Section 323/34 IPC and passed the sentence aforesaid. 6. In the appeal filed by the complainant (D.B. Cr. The learned trial court after hearing the final arguments, both the accused Ram Kumar and Kuldeep were held guilty and convicted for the offence under Sections 304 Part II read with Section 34 and under Section 323/34 IPC and passed the sentence aforesaid. 6. In the appeal filed by the complainant (D.B. Cr. Appeal No.867/2015), it is argued that the finding of the learned trial court to convict the accused appellants only for offence under Section 304 Part II read with Section 34 IPC is erroneous because there is ample evidence to prove the fact that accused appellants came on spot having iron rod in their hands and inflicted injury with intention to cause death upon the vital part of the body of the deceased Sahab Ram. Therefore, obviously they were liable for conviction under Section 302 read with Section 34 IPC, but the learned trial court committed a grave error to held the accused Ram Kumar and Kuldeep guilty for offence under Section 304 Part II read with Section 34 IPC. Therefore, the judgment impugned may kindly be set aside to the extent of finding for offence under Section 304 Part II read with Section 34 IPC and both the accused may be convicted for offence under Section 302 read with Section 34 IPC and they may be punished for life imprisonment. 7. According to learned counsel for the complainant-appellant the prosecution has to prove the intention and motive for committing murder of Sahab Ram, therefore, conviction may be altered to offence under Section 302 read with Section 34 IPC. 8. In D.B. Cr. Appeal No.765/2015 filed by the accused appellants Ram Kumar and Kuldeep it is submitted that the appellants are not challenging the incident, but accused appellant Kuldeep though held guilty for offence under Section 304 Part II read with Section 34 IPC, but punishment of 10 years with fine of Rs.60,000/- is not justified because as per finding of the learned trial court, there is no evidence of motive and intention to cause death of Sahab Ram. Both the parties are close relatives the incident took place all of sudden due to some dispute for water tank, in which only one injury was caused by Kuldeep which is said to be inflicted by iron road, therefore, the sentence of 10 years may kindly be reduced to already undergone. 9. Both the parties are close relatives the incident took place all of sudden due to some dispute for water tank, in which only one injury was caused by Kuldeep which is said to be inflicted by iron road, therefore, the sentence of 10 years may kindly be reduced to already undergone. 9. With regard to conviction of accused appellant Ram Kumar for offence under Section 304 Part II read with Section 34 IPC it is submitted that there is no allegation against him for inflicting injury to the deceased on vital part of the body and admittedly, there is finding of the learned trial court that there is no evidence of prosecution to prove intention or motive of the accused appellant for causing death of the deceased. Therefore, the accused appellant Ram Kumar who has not inflicted any injury upon vital part of the body to the deceased Sahab Ram cannot be held guilty for offence under Section 304 Part II read with Section 34 IPC because there is no evidence of common intention and common object, the finding of conviction recorded against him is contrary to law and facts, therefore, he may be acquitted from the charge under Section 304 Part II read with Section 34 IPC levelled against him. Learned counsel for the appellant Ram Kumar further submits that the appellant Ram Kumar is not challenging finding for offence under Section 323/34 IPC because there is allegation against him for inflicting simple injury. No other arguments are raised by the learned counsel for the appellant except the aforesaid arguments. 10. Learned Public Prosecutor and learned counsel for the complainant vehemently argued that it is a case in which as per evidence on record accused appellants are liable to be held guilty for offence under Section 302 read with Section 34 IPC, because prosecution has proved its case for committing offence under Section 302 IPC. There is no force in the contention raised by the accused appellants for reducing the sentence of 10 years to already undergone for accused Kuldeep so also, there is no strength in the argument to quash the finding of conviction recorded against the accused appellant Ram Kumar for offence under Section 304 Part II read with Section 34 IPC. There is no force in the contention raised by the accused appellants for reducing the sentence of 10 years to already undergone for accused Kuldeep so also, there is no strength in the argument to quash the finding of conviction recorded against the accused appellant Ram Kumar for offence under Section 304 Part II read with Section 34 IPC. Therefore, it is prayed that the appeal filed by the accused appellants may kindly be dismissed and the appeal filed by the complainant may kindly be allowed and both the accused may be held guilty for offence under Section 302 read with Section 34 IPC. 11. After hearing learned counsel for the parties, we have perused the entire evidence, so also, finding arrived at by the learned trial court. As per statement of PW-1 Praveen Kumar on the date of occurrence, which is 8.9.2013 his elder father Ram Kumar and his son Kuldeep made quarrel for the dispute to remove the water tank, in the evening when I and my father, who were removing water tank situated near the shop, his elder father accused Ram Kumar and his son Kuldeep came on spot with iron rod, and accused Kuldeep S/o his elder father Ram Kumar inflicted injury upon head of my father Sahab Ram and Ram Kumar inflicted one injury upon back of Sahab Ram and also caused injury upon my hand. Due to said injury his father fell down and taken to the hospital where he was declared died. It appears that, quarrel took place all of sudden due to dispute in the family with regard to construction of water tank, therefore, the learned trial court held that it is not a case in which accused appellants can be held guilty for offence under Section 302 IPC. 12. Upon assessment of finding and entire evidence, it cannot be said that there is evidence for offence under Section 302 IPC read with Section 34 IPC. Both the complainant and the respondents are closed relatives. The deceased Sahab Ram and Ram Kumar are the real brothers. The witness PW-1 Praveen Kumar and accused Kuldeep are cousin brothers, therefore, it is obvious that some dispute arose with regard to construction of water tank, and in the quarrel. For the said dispute one injury each was inflicted by the accused appellants. The deceased Sahab Ram and Ram Kumar are the real brothers. The witness PW-1 Praveen Kumar and accused Kuldeep are cousin brothers, therefore, it is obvious that some dispute arose with regard to construction of water tank, and in the quarrel. For the said dispute one injury each was inflicted by the accused appellants. It is also one of the fact that injuries were caused to the accused Ram Kumar also which is evident from the injury report available on record. In view of above, it cannot be said that prosecution has proved its case for committing offence under Section 302 read with Section 34 IPC. There is no force in the appeal (D.B. Cr. Appeal No.867/2015) filed by the complainant Praveen Kumar to alter the conviction from offence under Section 304 Part II read with Section 34 IPC to offence under Section 302 IPC. 13. With regard to conviction of accused appellant Ram Kumar for offence under Section 304 Part II read with Section 34 IPC, we have perused the statement of PW-1 Praveen Kumar, as per his statement, quarrel took place in between the family members, one injury by iron rod was inflicted by accused appellant Kuldeep on vital part of body of the deceased Sahab Ram, and as per finding of learned trial court after considering the post mortem report and allegation of prosecution no offence under Section 302 read with Section 34 IPC is made out because there was no motive or intention of the accused to cause death of the deceased. PW-10 Dr. Navneet Sharma stated before the court that in all injuries were found upon the body of accused Ram Kumar which is mention in Ex.P/15. All the injuries were caused by blunt weapon, but there is no explanation for the injury caused to the accused Ram Kumar. The statement of PW-10 Dr. PW-10 Dr. Navneet Sharma stated before the court that in all injuries were found upon the body of accused Ram Kumar which is mention in Ex.P/15. All the injuries were caused by blunt weapon, but there is no explanation for the injury caused to the accused Ram Kumar. The statement of PW-10 Dr. Navneet Sharma is as follows : 'kiFk fnykbZ xbZ fnukad 9&9&2013 dks eSa lh0,p0lh0 laxfj;k esa ,e vks ds in ij dk;Zjr Fkk A ml fnu lqcg ukS cts eSaus Mk0 ujs'k xxZ o cyoUr xqIrk ds lkFk cksMZ }kjk lkgcjke iq= lghjke 45 o"kZ tkfr dqEgkj dk iksLVekVZe fd;k Fkk A iksLVekVZe fjiksVZ izn'kZ 8 gS tks esjh dyeh gS ftl ij th ls ,p esjs gLrk{kje; eksgj gS A blesa e`R;q dk dkj.k pksV l[a;k 1 ls flj esa [kwu cgus ds dkj.k dkSek dh otg ls gqbZ gS A ftldh vksihuh;u , ls ch gS A fnukad 10&9&2013 dks nksigj 12%10 ih,e ij iqfyl izfrosnu ij eSaus jkedqekj iq= lghjke 50 o"kZ dqEgkj fuoklh gjhiqjk ds yxh pksVksa dk eqvk;uk fd;k Fkk pksV izfrosnu izn'kZ 15 gS ftl ij , ls ch esjs gLrk{kj gS pksVksa dh vof/k ,d lIrkg ds vUnj dh gS A ftjg }kjk vf/koDrk vfHk;qDr Jh gsejkt xksnkjk % eSaus 9&9&2013 dks iksLVekVZe fd;k Fkk A jkedqekj dh pksVksa dk eqvk;uk 10&9&2013 dks fd;k Fkk A ftlds fuEu pksVsa Fkha A 1 & ckbZ fiUMh ij uhys Hkwjsa jxa dk uhyxw fu'kku Fkk ftldk vkdkj 2 bUp xq.kk 2 bUp Fkk A 2 & ckbZ dksguh ij rhu NksVh [kjkspksa ds fu'kku Fks ftuesa izR;sd dk vkdkj 1@2 xq.kk 1@2 lsŒehŒ Fkk A 3 & flj ij ihNs dh rjQ 1 bUp xq.kk 1@2 bUp lwtu ikbZ xbZ A rhuksa pksVsa lk/kkj.k ,oa dqnkys ls ekjh gqbZ Fkh A igpku fpUg izn'kZ 15 ij lh ls Mh gSa ekStwn jke dqekj dk igpku fpUg ns[k dj crk;k fd bUgha dk eqvk;uk fd;k Fkk A jkedqekj izn'kZ 15 ds ikpa pksaVs la[;k 2 ,d gh txg dh rhu pksVsa Fkha A e`rd lkgcjke ds ,d gh pksV FkhA uksV%& 'khYM otg lcwr U;k;ky; ds vkns'k ls [kksyk x;k ftl ij yxh iphZ izn'kZ 16 gS A gfFk;kj yksgs dh jkM vkfVZdy gSA ;g ckr lgh gS fd jksaM dh eksVkbZ 3 bUp ugha gSA ;g ckr lgh gS fd pksV la[;k ,d jksM ,d ckj ekjus ls ugha vk ldrhA vt [kqn dgk fd nks ckj ekjus ls pksV ds vkus dh lHkkaouk ls bUdkj ugha fd;k tk ldrkA izn'kZ 8 dh pksV la[;k pkj vxj dksbZ ihB ds cy fxjs rks vkus dh laHkkouk ls bUdkj ugha fd;k tk ldrkA** 14. Upon perusal of the post morterm report Ex.P/8 above statement of PW-10 Dr. Navneet Sharma it is apparent that the injury no.1 caused by the accused appellant Kuldeep was cause of death because due to the said injury, deceased went in comma and died due to loss of blood. 15. In view of the above statement of PW-10 Dr. Naveneet Sharma and PW-1 Praveen Kumar (injured witness) and all other witness, we are of the opinion that it is a case of free fight, therefore, conviction of the accused appellant Ram Kumar for commission of offence under Section 304 Part II read with Section 34 IPC is not sustainable in law, but the finding of conviction recorded against him for offence under Section 323 IPC does not require any interference. 16. The learned counsel for the accused appellants is not challenging the finding of conviction recorded against the accused appellant Kuldeep for offence under Section 304 Part II read with Section 34 IPC but prayed that on the basis of evidence on record and upon the fact only one injury caused by him upon head to the deceased and cause of death was loss of blood due to said injury, therefore, the sentence of 10 years may kindly be reduced to already undergone. The prayer of the accused appellant Kuldeep is that on the basis of evidence no record, the sentence of 10 years for offence under Section 304 Part II of IPC is excessive because as per prosecution case the injury was caused by the accused appellant on head but deceased died due to loss of blood. 17. After considering the prayer of accused appellant Kuldeep, we are of the opinion that sentence awarded to the accused appellant in the facts and circumstances of the case is excessive. In case of Jagdish v. State of Haryana reported in AIR 2016 SC 3190 in almost identical circumstances, the learned trial court convicted the accused for commission of offence under Section 304 Part II IPC and imposed punishment of five years with fine of Rs.2,000/- vide judgment dated 20.12.2003. In appeal the Punjab and Haryana High Court upheld the said judgment and dismissed the appeal filed by the appellant vide judgment dated 6.11.2007. The Hon'ble Supreme Court in case of Jagdish (supra) gave the following finding, which reads as under: "3. In appeal the Punjab and Haryana High Court upheld the said judgment and dismissed the appeal filed by the appellant vide judgment dated 6.11.2007. The Hon'ble Supreme Court in case of Jagdish (supra) gave the following finding, which reads as under: "3. Zile Singh, Krishan Pal, Raj Kumar and Phoola Ram are the residents of village Mowana. On 15.06.2001, at about 4.30-5.00 p.m., when Phoola Ram, after doing his days work, was returning home and he was about to reach home, Nafe Singh armed with gandasi came and challenged and abused him and inflicted a gadasi blow on his head. On hearing the cry of Phoola Ram, Zile Singh and Raj Kumar, sons of Phoola Ram and Krishan Pal, his grandson came there to rescue him. In the meantime, Jagdish armed with lathi came and inflicted lathi blow on each of his hands. Ranjit and Rameshwar also reached there and inflicted lathi blow to Raj Kumar and Krishan Pal, Dharma, son of Sadhu Ram inflicted lathi blow on his shoulder, Jagdish and Ranjit inflicted lathi blow to Zile Singh, who fell unconscious. Arjun, son of Shankar Gadaria and many other villagers rushed to the spot and rescued them from the clutches of the accused. 8. By judgment dated 20.12.2003 in Sessions Trial No. 137/25.08.2003, the Trial Court convicted Jagdish, the appellant herein for the offences punishable under Section 304 Part II and Section 323 of the IPC and sentenced him to undergo rigorous imprisonment for five years with a fine of Rs.2000/- under Section 304 Part II of IPC and for a term of one year for the commission of the offence punishable under Section 323 of IPC. Both the sentences were to run concurrently. In default of payment of fine, to undergo further rigorous imprisonment for six months. 23. Even then we perused the evidence of PWs 2, 10 and 12 and find that it is consistent on all the material issues. It cannot be disputed that all the three witnesses witnessed the incident, which occurred in the evening. There is nothing on record to suggest that these witnesses had any kind of enmity against the appellant or that they were closely related to the deceased or complainant or/and his family. In the absence of anything against these witnesses, their testimony deserves to be accepted and was, therefore, rightly accepted by the two courts below. 24. There is nothing on record to suggest that these witnesses had any kind of enmity against the appellant or that they were closely related to the deceased or complainant or/and his family. In the absence of anything against these witnesses, their testimony deserves to be accepted and was, therefore, rightly accepted by the two courts below. 24. In the light of foregoing discussion, we have no hesitation in upholding the findings of the two Courts below and hold accordingly that firstly, incident in question did take place as alleged by the prosecution; Secondly, the appellant was present on the spot along with other accused; Thirdly, the appellant was armed with lathi; and Fourthly, the appellant gave lathi blows to Zile Singh due to which he died. 25. So far as the submissions of the learned counsel for the appellant are concerned, since we perused the evidence and find no error in the findings of the Courts below, the submissions urged deserve rejection. They have otherwise no merit being wholly based on appreciation of the evidence and the facts." 18. While considering the aforesaid judgment, we are of the opinion that sentence of 10 years imposed by the learned trial court for offence under Section 304 Part II read with Section 34 of the IPC is deserves to be reduced, but we cannot lose sight of the fact that in the case of Ankush Shivaji Gaikwad v. State of Maharashtra reported in (2013) 6 SCC 770 the Hon'ble Supreme Court, held that at the time of deciding any criminal case it is the duty of the Court to take care of damages suffered by the victim. In this case, the accused appellants are not challenging the incident and ready to pay compensation, therefore, we deemed it appropriate to pass an order of compensation also to the wife of deceased Sahab Ram who is actual victim of quarrel. The Hon'ble Apex Court gave direction that it is the mandatory duty of the Court to apply its mind in every criminal case so as to grant compensation or to refuse compensation to the victim. The relevant paragraph 66 of the said judgment reads as under :- "66. The Hon'ble Apex Court gave direction that it is the mandatory duty of the Court to apply its mind in every criminal case so as to grant compensation or to refuse compensation to the victim. The relevant paragraph 66 of the said judgment reads as under :- "66. To sum up: While the award or refusal o compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order under Section 357 Cr.P.C. would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family." In view of the above discussion, the D.B. Cr. Appeal No.867/2015 filed by the complainant for enhancement of conviction for offence under Section 302 IPC is hereby dismissed. 19. The D.B. Cr. Appeal No.765/2015 filed by the accused appellants Ram Kumar and Kuldeep is partly allowed. The conviction and sentence passed against the accused appellant Ram Kumar for offence under Section 304 Part II read with Section 34 IPC by the learned Addl. Sessions Judge, Sangariya, District Hanumangarh in Sessions Case No.24/2013 vide judgment dated 5.8.2015 is hereby quashed and set aside, however, the conviction and sentence for the offence under Section 323/34 IPC is hereby maintainable. Sessions Judge, Sangariya, District Hanumangarh in Sessions Case No.24/2013 vide judgment dated 5.8.2015 is hereby quashed and set aside, however, the conviction and sentence for the offence under Section 323/34 IPC is hereby maintainable. The finding of conviction recorded against the accused appellant Kuldeep for the offence under Section 304 Part II read with Section 34 IPC is hereby maintained, but the sentence of 10 years as imposed against the accused appellant Kuldeep by the learned trial court is hereby reduced to five years while maintaining the order of fine. 20. On the basis of entire evidence and upon the fact that in the incident in question the victim wife is deceased lost her husband for no reason, therefore, the appellants are directed to pay a sum of Rs.5 lacs as compensation to the victim Munni Devi, wife of deceased Sahab Ram within a period of two months from the date of judgment. Appeal No. 765/2015 partly allowed and Appeal No. 867/2015 dismissed.