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2018 DIGILAW 851 (RAJ)

RAM DHAN v. STATE OF RAJASTHAN

2018-03-23

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

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JUDGMENT AND ORDER : Mohammad Rafiq, J This appeal seeks to challenge the judgment of the learned Court of Sessions dated 19.02.1986 passed by Sessions Judge, Sawaimadhopur (Camp in Gangapurcity) in Sessions Case No.75 of 1985, whereby accused-appellants have been convicted for offence under Section 302/34 of IPC and sentenced to imprisonment for life with fine of Rs.100 each, in default whereof, each of them was directed to undergo rigorous imprisonment for one month. 2. As per the report of Senior Civil Judge and Additional Chief Judicial Magistrate, Gangapur City dated 29.08.2017, the accused-appellant no.2 Ram Swaroop died on 20.12.2006 and, therefore, the appeal filed by him abates, however, the appeal survives in respect of accused-appellant no.1 Ram Dhan. 3. The facts of the case are that the FIR No.39/1984 was registered at the Police Station Karauli on the basis of report of one Heera Lal S/o Shri Shanker, by Caste Meena, Resident of Village Petroli, about the incident alleged to have taken place at 2.30 PM on 16.02.1984. In the said report as many as eight persons namely; Ram Dhan, Ram Prasad, Vishram, Narayan, Ram Swaroop, Harswaroop, Sardar and Ramlal were named to be the assailants, who were responsible for murder of Badri. The prosecution case, as per the said report, was that the agriculture fields of the deceased Badri and that of Ram Dhan adjoined each other. On 16.04.1984 at 2.30 PM all the eight accused persons were working in the field of Ram Dhan. Ram Dhan was repairing the boundary wall of the two fields which was objected to by the deceased, Badri. It was further alleged that the appellants Ram Dhan and Ram Swaroop inflicted 'lathi' blows on Badri, while the remaining six co-accused gave fist blows to Badri. The prosecution case further was that injured, Badri was taken to the hospital at Karauli at about 4.00 PM on 16.02.1984. Sarpanch of the Village Panchayat had also accompanied the injured. However, no report was lodged at the Police Station, Karauli on 16.02.1984 as per the prosecution case. The aforesaid report was lodged at 12.40 PM on 17.02.1984 at the Police Station, Karauli. However, Badri died at 4.00 PM on 16.02.1984. After the registration of the case, the police submitted a challan against all the eight accused persons named in the first information report. The aforesaid report was lodged at 12.40 PM on 17.02.1984 at the Police Station, Karauli. However, Badri died at 4.00 PM on 16.02.1984. After the registration of the case, the police submitted a challan against all the eight accused persons named in the first information report. All the eight accused persons were tried in the court of the learned Sessions Judge, Sawaimadhopur (Camp at Gangapurcity) in Sessions Case No. 75/1985. After the completion of the trial, the learned Sessions Judge convicted and sentenced the accused-appellants under Section 302 read with Section 34 IPC, as stated above, while the remaining six accused were acquitted vide impugned judgment dated 19.02.1986. Hence this appeal. 4. Ms. Gayatri Rathore, learned counsel for the accused-appellants has argued that the finding arrived at by the learned Sessions Judge and the conviction and sentence passed against the accused appellants are patently illegal and perverse to the facts on record. No offence under Section 302 read with Section 34 IPC is made out against the accused appellants. The prosecution did not come with a true version about the incident. It is argued that the incident had taken place on 16.02.1984 at about 2.00 or 2.30 PM. The injured Badri was taken to hospital at Karauli on the same day, where the members of the complainant party and injured reached there at about 4.00 PM. Though the Police Station is at a very short distance from the General Hospital of Karauli but still no attempt was made to lodge any report at the Police Station. The report of the incident was made after due deliberation and concoction of the case on the next day at 12.40 PM and a story was invented in which as many as eight accused persons including the accused appellants were implicated. It is contended that the learned Sessions Judge failed to consider that in criminal case, prompt lodging of the report is of vital importance. Delay in loading the report gives an opportunity to the complainant to give a concocted and coloured version about the incident and there is always danger of innocent persons being implicated. It cannot be disputed that a number of persons were available to the prosecution to lodge the report. Delay in loading the report gives an opportunity to the complainant to give a concocted and coloured version about the incident and there is always danger of innocent persons being implicated. It cannot be disputed that a number of persons were available to the prosecution to lodge the report. The injured alongwith other persons including the Sarpanch of the village had reached at General Hospital, Karauli on the day of the incident itself but still no report was lodged at the Police Station. The delay in lodging the report is a serious infirmity which casts doubt on the entire prosecution case and the prosecution case deserves to be thrown out on this very ground. The learned Sessions Judge committed serious error of law in holding that there was satisfactory explanation for the delay in lodging the report. 5. Learned counsel argued that the Sarpanch of the Village Panchayat had also accompanied the injured to Hospital at Karauli. There were as many as four eye witnesses of the incident as per the prosecution case. Other persons had also accompanied the deceased while he was taken to the General Hospital, Karauli. It is unbelievable that no report could have been lodged by any of them including the Sarpanch of the Village Panchayat. It appears that the prosecution has suppressed the first version given by them to the police and the report, which is alleged to have been lodged on 17.02.1984 at 12.40 PM, appears to be a subsequent document prepared to implicate as many as eight persons including the accused appellants. 6. It is contended that the learned trial court did not critically appreciate the statements of the prosecution witnesses before holding the accused appellant guilty. The findings arrived at by the learned Sessions Judge are vitiated as being based on misreading of evidence, non-reading of material evidence in favour of the accused appellant as well as on mere surmises and conjectures. 7. Learned counsel submitted that the prosecution story about the incident and the participation of the assailants is falsified by the medical reports, as well as the inquest report. As per the inquest report, there was only one injury on the head of the deceased. As per the postmortem report, there were only two injuries, which included one simple injury. The Doctor has categorically stated that the injury no. 2 was simple in nature. As per the inquest report, there was only one injury on the head of the deceased. As per the postmortem report, there were only two injuries, which included one simple injury. The Doctor has categorically stated that the injury no. 2 was simple in nature. He further testified that the injuries no. 1 and 2 of Ex.D4 could be the result of one blow. Thus, the medical report falsifies the prosecution case as made out by them during the investigation of the case as well as at the stage of trial. Learned counsel submitted that since it is not known as to who was the author of the vital injury, the learned trial court committed serious error in invoking Section 34 IPC. However, section 34 of the Indian Penal Code cannot be invoked in the present case. As per the prosecution case itself, it is clear that the incident took place all of a sudden at the spur of the moment when the appellant Ram Dhan was repairing the boundary between his field and the field of the deceased, Badri. If the incident had taken place thereupon, even as per the prosecution case, Section 34 IPC, cannot be invoked as in any case it cannot be said that the common intention of the accused appellants were to commit the murder because he had two injuries, out of which one injury was simple in nature. 8. Learned counsel submitted that the learned trial court committed serious error in placing reliance on the testimony of Raghunath (PW2), Suwa Lal (PW4), Khema (PW5) and Kirodi (PW8), who are the alleged eye witnesses of the incident. Their testimony is highly interested and there are material contradictions and inconsistencies in their statements. As such, no reliance can be placed on the testimony of the aforesaid alleged eye witnesses of the incident. 9. It is submitted that the report has been lodged by Heera Lal, who was not an eye witness of the incident. He gave an imaginary story implicating as many as eight accused persons. The said story has been followed by other alleged eye witnesses of the incident. 10. The conduct of the aforesaid eye witnesses at the time of the incident and after the incident make their presence at the scene of the occurrence is highly doubtful. The false implication of the innocent persons was right from the very inception of the case. The said story has been followed by other alleged eye witnesses of the incident. 10. The conduct of the aforesaid eye witnesses at the time of the incident and after the incident make their presence at the scene of the occurrence is highly doubtful. The false implication of the innocent persons was right from the very inception of the case. Even there are serious defects in framing of the charges against the accused appellants as well as in recording their statement under Section 313 Cr.P.C. They have been seriously prejudiced thereby. 11. Ms. Gayatri Rathore, learned counsel for the accused-appellants has argued that the incident had taken place in a sudden fight at the spur of moment in the heat of passion in which one 'lathi' blow each was delivered by both the accused-appellants to the deceased and, therefore, the accused-appellant Ram Dhan cannot be held to have any intention to commit murder of deceased. Only injury no.1 as per the postmortem report (Ex.P5) has proved to be fatal, which is evident from the statement of Dr. Mukut Bihari (PW6). It was a case of cross fight by both the parties. It is alleged that accused tried to put baad (boundary) in the agriculture land of the deceased and deceased has resisted that and owing to that, quarrel took place. Learned counsel therefore submitted that there was no external injuries as per the original injury report (Ex.D4) on the person of the deceased. First injury was only a contusion in the size of 3 cm x 1 cm and second and third injuries were swelling, therefore, the offence of the accused-appellant could at the maximum be under Section 325 IPC. Since the incident took place way back on 16.02.1984 and a longer period of 34 years has gone by and the accused-appellant Ram Dhan is aged more than 70 years, this Court should take a lenient view of the matter by convicting him for offence u/s.325 of IPC and sentencing him to a period of eight months, which has already been undergone by him. Learned counsel in support of his arguments has referred to the statements of Heera Lal (PW1), Raghunath (PW2), Ram Lakhan (PW3), Sua Lal (PW4), Khema (PW5) and Kirori (PW8) and also referred to the postmortem report (Ex.P5), reference to which shall be made at the appropriate place and time. 12. Learned counsel in support of his arguments has referred to the statements of Heera Lal (PW1), Raghunath (PW2), Ram Lakhan (PW3), Sua Lal (PW4), Khema (PW5) and Kirori (PW8) and also referred to the postmortem report (Ex.P5), reference to which shall be made at the appropriate place and time. 12. Smt. Sonia Shandilya, learned Public Prosecutor opposed the appeal and submitted that the allegation of all the eye witnesses are quite specific that first injury, which is proved to be fatal on the right side of the head was caused by none other than Ram Dhan. It is that injury, which as per the postmortem report was contusion in the dimension of 15 cm x 2 cm on right parietal and temporal region with swelling. This postmortem report has been proved by Dr. Mukut Bihari (PW6). The second injury was being contusion in the size of 3 cm x 2 cm on left temporal region of scalp with swelling, which was caused by co-accused Ram Swaroop, who too was convicted with the accused-appellant Ram Dhan, but has since died. 13. Learned Public Prosecutor opposed the argument that the offence of the accused-appellant would not travel beyond Section 325 IPC as the statement of eye witnesses are categorical that it was accused-appellant Ram Dhan, who inflicted first and major fatal blow. The accused if merely remained in jail for eight months, that would hardly meet the ends of justice. The appeal is therefore liable to be dismissed. 14. We have given our anxious consideration to the rival submissions and perused the material on record. 15. Heera Lal (PW1) happened to be elder brother of deceased Badri. He is although a witness of hearsay because he himself had admitted that he was out of village and reached back home on the second day of incident. His brother Kirori told him about the incident saying that dispute between the two parties took place when Ram Dhan had broken the 'made' (boundary) of the agriculture filed of the complainant party. Badri forbade him from doing so. It is owing to this fact that Ram Dhan subjected him to beating. Raghunath (PW2) however is eye witness of the incident. 16. He too has corroborated the way the dispute took place. He has stated that he had gone to their agriculture field along with Badri for harvesting the crop of sugarcane. Badri forbade him from doing so. It is owing to this fact that Ram Dhan subjected him to beating. Raghunath (PW2) however is eye witness of the incident. 16. He too has corroborated the way the dispute took place. He has stated that he had gone to their agriculture field along with Badri for harvesting the crop of sugarcane. It was around 2-2.30 pm when the incident took place. Ram Dhan started extending the boundary of his agriculture field thereby covering the land of the agriculture field of the complainant party. Badri with folded hands requested Ram Dhan not to do so. However, Ram Dhan in return inflicted a 'lathi' blow on his head and thereafter Ram Swaroop caused another blow of 'lathi' to Badri, as a result Badri fell on the ground. At the time of incident, all the accused persons assembled there. 17. In cross examination, this witness has denied the suggestion that it was not Badri, who inflicted the first blow to Ram Dhan. Badri was rather requesting Ram Dhan with folded hands not to trespass into his land. Ram Dhan and Ram Swaroop caused injuries to Badri. Sua Lal (PW4) has also been produced as an eye witness. He too has stated that incident took place around 2.00 PM when Ram Dhan had broken 'doli' (boundary) of the agriculture field of Badri and installed boundary ('dhakar') there. Badri with folded hands requested him not to do so. Ram Dhan thereupon inflicted a 'lathi' blow on his head followed by Ram Swaroop, who also inflicted 'lathi' blow on his head and thereafter other accused encircled Badri. Khema (PW5) has also stated that Badri was requesting Ram Dhan with folded hands not to make 'baad' (boundary) in his agriculture field. Ram Dhan thereupon without any utterance inflicted 'lathi' blow on his head. Second 'lathi' blow was caused by Ram Swaroop on his head. The third 'lathi' blow again was caused by Ram Dhan, as a result of which, deceased Badri started bleeding from his mouth. 18. Kirori (PW8), yet another brother of the deceased has appeared as eye witness. He too has stated that incident has taken place around 2-2.30 PM when Ram Dhan was making a 'baad' (boundary) by the dried bushes. Badri refrained him from doing so. 18. Kirori (PW8), yet another brother of the deceased has appeared as eye witness. He too has stated that incident has taken place around 2-2.30 PM when Ram Dhan was making a 'baad' (boundary) by the dried bushes. Badri refrained him from doing so. Ram Dhan then inflicted a 'lathi' blow on the head of Badri and thereafter Ram Swaroop inflicted another 'lathi' blow and third 'lathi' was again caused by Ram Dhan. The postmortem report of the deceased has been proved by Dr. Mukut Bihari (PW6). According to him, there was a contusion in the size of 15 x 12 cm on the right parietal and temporal region of the scalp of the deceased and another injury was also a contusion in the size of 3 x 2 cm on left temporal region of scalp. Here it may be noted that in the x-ray report (Ex.P6), there was fracture of right parietal bone of the deceased Badri. Dr. Mukut Bihari (PW6) has stated that on opening of the scalp, right parietal bone was found fractured, running from right parietal region upto base of the skull with accumulation of blood in area measuring 8x5 cm. (extradural homogamy). This accumulation of blood rendered the right side of the brain heavier (right motor cortex). The membrane of the brain was full of blood. The cause of death was first injury leading to the internal fractures in scalp. In the face of evidence of eye witness account as also the medical experts, we are not inclined to countenance the submission that this would be a case of causing grievous injury by non-lethal weapon and punishable only under Section 325 IPC for voluntarily causing grievous hurt. However, the evidence also suggests that incident in the present case has taken place all of sudden at the spur of moment in a sudden fight in the heat of passion when the accused started making 'baad'/'made' (boundary) in the agriculture field of the deceased and wanted to extend the area of his own agricultural field by covering certain land of the agriculture field of deceased, which was resisted by the deceased Badri. Though the evidence suggests that he did so by requesting the accused with folded hands to refrain from doing so. Though the evidence suggests that he did so by requesting the accused with folded hands to refrain from doing so. Even if we chose that part of the evidence given the fact that witnesses, who have supported the version of the prosecution are mostly related to deceased, but this much is clear that incident was started by the accused-appellants and not by the complainant party. The case of the accused can therefore fall in exception (4) to Section 300 of IPC as only one injury was caused on the head of the deceased by the accused-appellant Ram Dhan and another head injury has been attributed to Ram Swaroop, though the witnesses have stated that third injury was also caused to the deceased by Ram Dhan, but that third injury has not been indicated in the postmortem report. The first injury was thus caused by the accused Ram Dhan to the deceased in a sudden fight at the spur of moment in a heat of passion without any intention, but certainly with the knowledge of the fact that the injury that he would cause likely result in death, thus bringing the offence within the purview of Section 304 Part-II IPC. 19. In the result, this appeal succeeds in part. The conviction of the accused-appellant Ram Dhan for offence u/s.302/34 IPC is set aside. He is instead convicted for offence u/s.304 Part-II IPC and sentenced to rigorous imprisonment of five years with fine of Rs.2,000, in default of which, he shall undergo simple imprisonment for two months. The impugned judgment is accordingly modified. The accused-appellant Ram Dhan was granted bail by this Court vide order dated 13.09.1984. Thereafter his sentence was suspended by this Court vide order dated 21.03.1986. Thus he remained in jail for almost eight months. He is therefore directed to surrender immediately before the trial court, which will take him into custody and send him to jail to serve out the remaining sentence of imprisonment. In case, the aforesaid accused-appellants does not surrender within one month from the date of receipt of copy of this judgment and order, the trial court shall take necessary steps to take him into custody and send him to jail to serve out the remaining sentence of imprisonment.