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2018 DIGILAW 2293 (RAJ)

Kala v. State of Rajasthan

2018-12-12

MANOJ KUMAR GARG, PRADEEP NANDRAJOG

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JUDGMENT Pradeep Nandrajog C.J. - Instant criminal appeal has been filed by the appellants under Section 374(2) Cr.P.C., 1973 against the judgment dated 12.05.2009 passed by learned Additional Sessions Judge (FT) Dungarpur in Sessions Case No. 2/2009 by which the learned trial court convicted and sentenced the appellants as under:-- Accused Kala : Offence Punishment 302 IPC Life Imprisonment and a fine of Rs. 2000/-, in default of payment of fine, to undergo three months R.I. Accused Dinesh & Ramesh : Offence Punishment 302/149 IPC Life Imprisonment and a fine of Rs. 2000/- each, in default of payment of fine, to undergo three months R.I. Accused Kala, Dinesh & Ramesh : Offence Punishment 307/149 IPC 10 years R.I. and fine of Rs. 5000/- each and in default of payment of fine, to undergo three months R.I. 447 IPC Three months R.I. and a fine of Rs. 5000/- each, in default of payment of fine, to undergo ten days R.I. 323 IPC One year R.I and a fine of Rs. 1000/- each and in default of payment of fine to undergo one month R.I. 148 IPC Three years' R.I and a fine of Rs. 1000/- each, in default of payment of fine, to undergo one month's R.I 2. Criminal litigation was set into motion on presentation of complaint lodged by complainant PW/10 Gautam at Police Station Bicchiwada, Distt. Dungarpur on 30.10.2008 to the effect that there is an old land dispute between him and his brothers Kamji, Kala, Hanja and Heera. On 30.10.2008 at about 3:30 PM when he was sitting in his house and doing some work, suddenly Kala, Kamji, Hanja, Dinesh, Ramesh and Bassu came there armed with 'Dhariya' and lathi. Kala inflicted Dharia blow on his head and the other accused gave beating with lathi and fist blows. While he was shouting, his brother Heera came there and Kala inflicted Dharia blow on Heera's head and leg. The other accused gave beating by lathi and fist blows. Heera fell down and died on the spot. 3. On the basis of said report, a formal FIR (Ex.P/17) was registered at Police Station, Bichhiwada and investigation commenced. 4. Post investigation both appellants and two more were charged as accused and were sent for the trial. 5. The report of investigation was filed in the Court of Addl. Heera fell down and died on the spot. 3. On the basis of said report, a formal FIR (Ex.P/17) was registered at Police Station, Bichhiwada and investigation commenced. 4. Post investigation both appellants and two more were charged as accused and were sent for the trial. 5. The report of investigation was filed in the Court of Addl. Chief Judicial Magistrate, Dungarpur and later on the case was committed to Court of Sessions. The trial was entrusted to Additional Sessions Judge (FT), Dungarpur where charges were framed against the appellants. The appellants pleaded not guilty and claimed trial. 6. The prosecution examined 14 witnesses and exhibited various documents. On the defence side no witness was examined. 7. At the conclusion of the trial, the learned Additional Sessions Judge (FT) Dungarpur vide judgment dated 12.05.2009 convicted the present appellants and passed sentence as mentioned earlier. 8. We have considered the rival submissions and scanned the evidence on record thoroughly. 9. PW-3 Hirki W/o deceased Heera in her statement has stated that her house is situated near the house of Gautam so she saw all the accused going and beating Gautam inside his house. She alongwith her husband Heera went to the house of Gautam where Kalla inflicted Dharia blow on her husband's head. Ramesh and Dinesh also gave beating by lathi. Hanja and Bassu inflicted injuries by stone. As per Hirki, the occurrence took place due to old enmity regarding the land. In her cross-examination, she mentioned that when she heard the voice and reached the house of Gautam, she saw that Gautam and her husband Heera both lying there and Gautam narrated the entire incident to her. Thus, the said witness reached on the spot after the occurrence took place so she cannot be said to be an eye-witness in this case. 10. PW-4 Naina W/o Gautam in her statement stated that all the accused came there. Kala inflicted Dharia blow on the head of her husband Gautam. Dinesh and Ramesh inflicted lathi blow and other accused gave fist blows. The accused persons also came after her but she escaped. She further stated that after some time, Heera and Hirki both came there. Kala inflicted Dharia blow on the head of Heera. Dinesh and Ramesh inflicted lathi blows on Heera ; Hanja and Bassu gave fist blows due to which Heera fell down and expired. The accused persons also came after her but she escaped. She further stated that after some time, Heera and Hirki both came there. Kala inflicted Dharia blow on the head of Heera. Dinesh and Ramesh inflicted lathi blows on Heera ; Hanja and Bassu gave fist blows due to which Heera fell down and expired. In cross-examination, she clearly mentioned that Kala inflicted Dharia blow by sharp side on the head of Heera. 11. Another material eye-witness injured and complainant PW-10 Gautam in his statement mentioned that all the five accused persons came there. Kala inflicted Dharia injury on his head. Dinesh inflicted lathi blow and Bassu gave stone injury. When he shouted, both Heera and Hirki came there. Kala again inflicted injury on the legs and head of Heera. Ramesh inflicted injury by lathi and Dinesh gave blow by stone to Heera. In his statement, he mentioned that Bassu inflicted stone injury but a perusal of statement under Section 161 Cr.PC. will go to show that no such assertion has been made. 12. Thus, a perusal of statements of these witnesses and also the evidence of Gautam PW-10, it is evident that Kala inflicted Dharia blow to injured Gutam as well as deceased Heera. 13. Injured Gautam PW/10 has been examined by PW-7 Dr. Vinay Kumar Jain who found three injuries out of which, two injuries were lacerated on right parietal scalp and left ankle. The third injury is only pain and swelling on left ankle. All these injuries were found to be simple in nature inflicted by a blunt weapon in the x-ray report. The injury report is marked as Ex.P/13. 14. The doctor also conducted the postmortem of deceased Heera and found fracture on his left midleg bone by lacerated wound. Second injury on the mid leg bone was found to be lacerated, third injury on right lower leg bone was also lacerated and fourth injury on orvito frontal bone on left side was also lacerated. The cause of death of Heera was mentioned as Polytrauma (head and limbs injury) leading to haemorrhage shock. The postmortem report is Ex.P/15. The doctor in his cross-examination has mentioned that on the body of injured Gautam, no injury by sharp weapon was found. Likewise on the body of deceased Heera, no injury of sharp edged weapon was found. 15. The cause of death of Heera was mentioned as Polytrauma (head and limbs injury) leading to haemorrhage shock. The postmortem report is Ex.P/15. The doctor in his cross-examination has mentioned that on the body of injured Gautam, no injury by sharp weapon was found. Likewise on the body of deceased Heera, no injury of sharp edged weapon was found. 15. The trial court acquitted the co-accused Haja and Bassu partly disbelieving the testimony of PW/10 Gautam, PW/3 Hirki and PW/4 Naina against which no appeal has been filed by the State and the said judgment has attained finality. 16. As far as the accused Kala is concerned, he has been convicted for offence under Section 302 simplicitor. The eyewitnesses as well as injured clearly mentioned that the accused persons wanted to beat Gautam. Kala inflicted injury by Dharia to Gautam. But on perusal of medical report, it is evident that no injury of sharp edged weapon was found on the body. Later on Heera came there and as per witnesses, Kala inflicted Dharia blow on the head of Heera but on perusal of postmortem report, no injury of sharpedged weapon is found on the body of deceased. Thus, no conviction can be made for offence under Section 302 IPC and at the most, the accused Kala can be convicted for offence under Section 304 Part I IPC and sentenced to a period of ten years rigorous imprisonment. As per information, accused Kala is behind the bars since 02.11.2008, therefore, it will be just and proper, if the sentence awarded to the accused Kala is reduced to the period already undergone. 17. So far as the conviction and sentence awarded to accused Dinesh and Ramesh for offence under Section 302/149 IPC is concerned, PW-3 Hirki in her statement has stated that accused Ramesh and Dinesh both gave beating to her husband Heera by lathi but she has not seen the incident when accused were beating Gautam. In her crossexamination, she mentioned that when she reached the spot, Gautam and her husband Heera both were lying there. PW/4 Naina who is wife of Gautam mentioned that Dinesh and Ramesh both inflicted injury by lathi to injure Heera. PW-10 Gautam in his statement mentioned that Ramesh inflicted lathi injury to him. He has not mentioned that accused Dinesh inflicted any injury to him. PW/4 Naina who is wife of Gautam mentioned that Dinesh and Ramesh both inflicted injury by lathi to injure Heera. PW-10 Gautam in his statement mentioned that Ramesh inflicted lathi injury to him. He has not mentioned that accused Dinesh inflicted any injury to him. Though he mentioned that accused Ramesh inflicted lathi blow and Dinesh inflicted stone injury to the deceased Heera. Thus, on perusal of these statements, it is evident that there are material variations about the injuries caused by the accused appellants to the injured as well as the deceased. The trial court partially disbelieved these statements and acquitted two co-accused persons Haja and Bassu. Thus, no conviction can be made for offence under Section 302/149 IPC and at the most, the accused Dinesh and Ramesh can be convicted for offence under Section 304 Part I read with 34 IPC and sentenced to a period of ten years rigorous imprisonment. Further, the trial court has convicted the accused appellants with the aid of Section 149 IPC whereas, the trial court had already acquitted two accused persons and as per definition of 'unlawful assembly' as defined in Section 141 IPC, an assembly of five or more persons is designated as an "unlawful assembly". Thus, the conviction of the accused appellants with the aid of Section 149 IPC is not sustainable. As per information, accused Dinesh and Ramesh ae behind the bars since 02.11.2008, therefore, it will be just and proper, if the sentence awarded to the accused Dinesh and Ramesh is reduced to the period already undergone. 18. Now coming to the conviction and sentence of accused Kala Dinesh & Ramesh for offence under Section 307/149 IPC, firstly the trial court has convicted the accused appellants with the aid of Section 149 IPC whereas, the trial court had already acquitted two accused persons and as per definition of 'unlawful assembly' as defined in Section 141 IPC, an assembly of five or more persons is designated as an "unlawful assembly". Thus, the conviction of the accused appellants with the aid of Section 149 IPC is not sustainable. Secondly, as discussed above, PW-3 Hirki in her statement has stated that accused Ramesh and Dinesh both gave beating to her husband Heera by lathi but she has not seen the incident when accused were beating Gautam. Thus, the conviction of the accused appellants with the aid of Section 149 IPC is not sustainable. Secondly, as discussed above, PW-3 Hirki in her statement has stated that accused Ramesh and Dinesh both gave beating to her husband Heera by lathi but she has not seen the incident when accused were beating Gautam. In her cross-examination, she mentioned that when she reached the spot, Gautam and her husband Heera both were lying there. PW-4 Naina who is wife of Gautam mentioned that Dinesh and Ramesh both inflicted injury by lathi to injured Heera. PW-10 Gautam in his statement mentioned that Ramesh inflicted lathi injury to him. He has not mentioned that accused Dinesh inflicted any injury to him. Though he mentioned that accused Ramesh inflicted lathi blow and Dinesh inflicted stone injury to deceased Heera. Thus, on perusal of these statements, it is evident that there are material variations about the injuries caused by the accused appellants to the injured as well as the deceased. As per injury report of injured PW-10 Gautam, the injuries sustained by him are simple in nature by blunt weapon. Similarly, on perusal of postmortem of Heera (Ex.P/15), it is evident that deceased received four injuries out of which, one injury was on the head and all other injuries were on his legs i.e non-vital part of the body, therefore, at the most the appellants Kala, Dinesh and Ramesh can be convicted for offence under Section 325/34 IPC instead of Section 307/149 IPC. 19. Accordingly, the appeal is partly allowed. The conviction and sentence recorded against accused Kala for offence under Sections 302 IPC is hereby set aside and instead, he is convicted for offence under Section 304 Part I IPC and sentenced to a period of ten years rigorous imprisonment. Similarly, the conviction recorded against the accused Dinesh & Ramesh for offence under Section 302/149 IPC is set aside and instead they are convicted for offence under Section 304 Part I read with 34 IPC and sentenced to a period of ten years rigorous imprisonment. As far as the conviction recorded by the trial court against accused Kala, Dinesh and Ramesh for offence under Section 307/149 IPC, the same is set side and instead the accused appellants are convicted for offence under Section 325/34 IPC and sentenced to a period of five years rigorous imprisonment. As far as the conviction recorded by the trial court against accused Kala, Dinesh and Ramesh for offence under Section 307/149 IPC, the same is set side and instead the accused appellants are convicted for offence under Section 325/34 IPC and sentenced to a period of five years rigorous imprisonment. As far as the conviction of accused appellants Kala, Dinesh and Ramesh for offence under Section 447, 323 and 148 IPC is concerned, no interference is called for in the conviction and sentence for said offences and same is hereby maintained. All the accused have already served the sentence so they may be released forthwith, if not required in any other case.