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2018 DIGILAW 480 (RAJ)

PURKHARAM JAT v. STATE OF RAJASTHAN

2018-02-08

MANOJ KUMAR GARG

body2018
ORDER : Manoj Kumar Garg, J. The instant criminal appeals have been filed by the accused appellants namely Purkharam and Jaggaram @ Jagdish Under Sections 323, 325, 447 of IPC against the judgment dated 11.05.2017 passed by the Special Court SC/ST Prevention of Atrocities Act, Cases Jodhpur in Sessions Case No. 27/2009 NCV No. 257/2014 by which the Court convicted the accused-appellants for offences under Sections 323, 325, 447 of IPC and passed the following sentence :- Section 323 IPC-Six months' simple imprisonment and a fine of Rs.1,000/- each in default to further undergo one month simple imprisonment. Section 325 IPC-Three years rigorous imprisonment and a fine of Rs.3,000/- each in default to further undergo two months rigorous imprisonment. Section 447 IPC-Three months' simple imprisonment and a fine of Rs.500/- each in default to further undergo 15 days simple imprisonment. All the sentences were ordered to run concurrently. 2. The brief facts of the case are that complainant Jogaram (PW/7) filed a report at the police station Dechu alleging that on 03.03.2009 in the night at about 11:00 PM, he was sleeping in his house. His mother and sister both resided nearby his house. At that time, Laduram, Purkharam and Jagdish entered his mother's house and they used abusive language. They were having lathis and started beating his mother and sister. At their shout, Jogaram reached there and intervened, then all the accused gave fist blows to him. They threatened the mother and sister, saying that she should vacate the house otherwise they will kill them. Thus the accused persons entered the house of his mother and caused grievous injury to his mother as well as sister. 3. On the said report, the Police registered a formal FIR No.29/2009 (Ex.P/15) for offence under Sections 323, 325, 447 of IPC and started the investigation. After usual investigation, the police filed charge sheet against the accused-appellants as well as one more accused Laduram before the Court of Judicial Magistrate Balesar, Jodhpur for offences punishable under Sections 460, 323, 325/34 IPC and 3(1)(v), 3(i) (x), 3(2)(V) SC/ST (Prevention of Atrocities) Act [hereinafter referred to as 'SC/ST Act']. After usual investigation, the police filed charge sheet against the accused-appellants as well as one more accused Laduram before the Court of Judicial Magistrate Balesar, Jodhpur for offences punishable under Sections 460, 323, 325/34 IPC and 3(1)(v), 3(i) (x), 3(2)(V) SC/ST (Prevention of Atrocities) Act [hereinafter referred to as 'SC/ST Act']. Later on, the case was transferred in the Court of Special Court SC/ST (Prevention of Atrocities Act) Cases Jodhpur where the charges were framed against the accused appellants for offence under Sections 460, 323, 325 IPC and 3 (1) (x) 3 (2) (v) of SC/ST Act but the accused appellants denied the charges and pleaded for trial. 4. During this period, the co-accused Laduram absconded so, the trial commenced against the present appellants only. The trial Court examined as many as eleven witnesses in all and exhibited several documents. Thereafter the statements of the accused-appellants were recorded under section 313 Cr.P.C., 1973 No witness was examined on the defense side. 5. At the conclusion of the trial, the trial Court acquitted the accused appellants for offence under Section 460 IPC and section 3(1)(x) and 3(2)(v) of SC/ST Act but the trial Court convicted the present appellants for offences under Section 323, 325, 447 IPC and sentenced them as mentioned above. 6. Learned counsels for the appellants submitted that the occurrence took place in the night at about 11:00 PM. At this time there is no question of identification of the appellants. Further, after the arrest of the accused appellants, no test identification parade was held and without identification, it cannot be said that the accused appellants entered the house of the injured and caused injuries. Learned counsels further argued that there are major contradictions, omissions and improvement in the statement of injured witness Nirma (PW/4) as well as statement of complainant Jogaram (PW/7). Lastly they argued that recovery was made from an open place so, recovery in this case does not connect the appellants with the crime. Therefore, both the appellants should be acquitted in this case. 7. Per contra, the learned public prosecutor argued that the accused appellants entered the house of injured in the night at about 11:00 PM. They caused grievous injuries to both the ladies and very much identified the appellants in the night so the question of test identification parade does not arise in this case. 7. Per contra, the learned public prosecutor argued that the accused appellants entered the house of injured in the night at about 11:00 PM. They caused grievous injuries to both the ladies and very much identified the appellants in the night so the question of test identification parade does not arise in this case. Therefore, the conviction recorded against the appellants is proper and no leniency can be drawn in favour of the accused appellants. 8. I have heard the learned counsel for the appellants as well as learned public prosecutor and perused the impugned judgment passed by the learned trial court and carefully gone through the record of the case. 9. The informant Jogaram (PW/7) who filed a written report before the police station is also an eye-witness in this case. He clearly stated that in the night at about 11:00 PM when he heard the noise of his mother and sister, he went to the house of his mother and he saw that the accused appellants Laduram, Purkharam and Jagdish all three accused appellants were beating his mother as well as his sister. He further stated that his mother and sister resided in that house for past so many years but the accused appellants wanted to grab the house; so they wanted the injured to vacate the house. Due to this reason, the accused persons entered the house of his mother and sister and caused injuries to both the ladies. 10. Smt. Nirma (PW/4) injured and eye-witness in this occurrence has clearly stated that on 03.03.2009 at about 11:00 PM in the night the accused appellants Jagdish, Purkharam and Laduram entered in her house. Purkharam was having 'Lagiya' and Laduram and Jaggaram were having lathies. They were using abusive language and caused injuries to her. Her mother also received injuries. She further stated that they resided in their house for many years but the accused appellants wanted to grab the property and in order to get the house vacated, they entered in her house and caused injures to her. 11. It is relevant to mention here that mother of Smt. Nirma namely Smt. Bastu Devi was about 65 years at the time of the incident but during the trial she expired, so, the statement of Smt. Bastu was not recorded before the Court. 12. 11. It is relevant to mention here that mother of Smt. Nirma namely Smt. Bastu Devi was about 65 years at the time of the incident but during the trial she expired, so, the statement of Smt. Bastu was not recorded before the Court. 12. In support of the contention of complainant Jogaram (PW/7) as well as injured eye-witness's statement of Smt. Nirma (PW/4), the injuries reports (Ex.P/4 & Ex.P/5) were corroborated by the Dr. Dinesh Nangal PW/5 who found following injuries on the body of Smt. Nirma :- 1. Bruise & swelling 5.0 cm x 4.0cm at distal part of lower 1/3 of forearm. 2. Bruise 5.0 x 4.0cm near wrist joint Lt. sided wrist Jt. 3. Swelling 4.0cm x 4.0cm Rt leg. Following injuries are found on the body of Smt. Bastu :- 1. Lacerated wound 3.5cm x 1.5cm x 1.cm middle of the Lt. Leg 2. Lacerated wound 2.5cm x 1.0cm x 1.0cm middle of the Rt leg. 3. Swelling 7.cm x 5cm Rt side lower part of forearm near the wrist joint. 13. The X-ray report of Smt. Nirma shows that she received two injuries which are grievous in nature, found on her left hand and right leg. Likewise according to the X-ray report of Smt. Bastu, two injuries are grievous in nature which were on her left leg and right hand. So, it is proved that both the injured received grievous injuries on their body and this corroborates the story of the injured and the complainant eye-witnesses. 14. Learned counsel for the appellants argued that the occurrence took place at 11:00 PM in the night and in the dark, the assailants could not be identified by the injured and complainant. The First Information report was lodged by the eye-witness Jogaram; and likewise the injured Smt. Nirma PW/4 also mentioned that the accused appellants entered in her house and caused injures so, there is no question of not identifying the assailants and therefore, no occasion arose to hold the test identification parade in this case. Thus, the argument of counsel for the appellants does not have any weight at all. It may be noted that after the arrest of the accused appellants, lathies were recovered from the possession of the appellants which duly corroborates the story of prosecution. The counsel for the appellants lastly argued that both the appellants were facing the trial since 2009. Thus, the argument of counsel for the appellants does not have any weight at all. It may be noted that after the arrest of the accused appellants, lathies were recovered from the possession of the appellants which duly corroborates the story of prosecution. The counsel for the appellants lastly argued that both the appellants were facing the trial since 2009. Purkharam is behind the bars in another case also and Jagdish has remained in custody for about two and half months, therefore, they may be released on the period already undergone by them. 15. I have considered the arguments of counsel for the appellants on the point of sentence. Admittedly, the occurrence has taken place in the year 2009 and the appellants have suffered trial since 2009. Appellant Jagdish remained in custody for about two and half months and accused Purkharam is reported to be in custody for more than two years. Since the injuries received by the injured are on non-vital part of the body and appellants at the time of occurrence were in young age of 21-25 years, therefore, in these facts and circumstances the argument of learned counsel for the appellants deserves acceptance. 16. Hon'ble Supreme Court in the case of State of Uttar Pradesh v. Tribhuwan & Ors. reported in (2018) 1 SCC (Cri) 277 has held as under :- "25. In our considered opinion, the High Court was, therefore, not right in setting aside the entire jail sentence of Respondent No.1 while upholding his conviction Under Section 325 Indian Penal Code. The High Court, in our view, ought to have either upheld the award of jail sentence of four years awarded by the Sessions Court or reduce the jail sentence to any reasonable term but it had no jurisdiction to fully set aside the jail sentence and substitute it by imposing only fine of Rs. 10,000/-. 26. As rightly argued by the learned Counsel for Respondent No.1, the period already undergone by Respondent No.1 (40 days) while Respondent No. 1 was in detention, as under-trial and as convict, was also a jail sentence and could be treated as jail sentence once awarded to Respondent No.1 Under Section 325 Indian Penal Code, and accordingly its benefit by way of set off could be given to him Under Section 428 of Code." 17. Accordingly, looking at the age of the appellants at the time of occurrence and also the fact that the appellant Jagdish has remained in custody for about two and half months and appellant Purkharam is behind the bars for last two years, ends of justice will meet if for the offence under Section 325 IPC, the sentence awarded to the appellants of three years rigorous imprisonment is reduced to three months rigorous imprisonment while enhancing the fine from 3,000/- to 15,000/- each and in default of payment of fine to further six months rigorous imprisonment. 18. As far as offence under Section 447 IPC is concerned, the sentence awarded by the trial Court does not require any interference but so far as the offence under Section 323 IPC, sentence of six months simple imprisonment is liable to be reduced to three months simple imprisonment while enhancing the amount of fine from Rs. 1000/- to Rs. 5,000/- and in default of payment of fine to further one month simple imprisonment. 19. Accordingly, the appeals of the appellants is partly allowed. The appellants' conviction and sentence under Sections 447 IPC is hereby maintained. However, for offence under Section 323 & 325 IPC while maintaining the conviction, the sentence awarded under Section 323 IPC is hereby reduced from six months S.I. to three months S.I. while enhancing the amount of fine from Rs. 1,000/- to Rs. 5,000/- each and for offence under Section 325 IPC, the sentence of three years R.I. is reduced to three months R.I. while enhancing the fine from Rs. 3000/- to Rs. 15,000/- each. The amount of fine shall be deposited by the appellants in the trial court within one month from the date of this order, and on such deposit, the amount of fine shall be disbursed to the injured Smt. Nirma. In default of such deposit within the stipulated period, this appeal shall stand dismissed and the appellant shall be sent to jail to serve remaining sentence. 20. The trial Court shall keep the record in safe custody because accused Laduram is still absconding and whenever he will be arrested, the trial shall proceed against the accused Laduram. Copy of this judgment be sent to the trial Court for compliance.