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2019 DIGILAW 441 (RAJ)

Radha Kishan v. State of Rajasthan

2019-02-06

G.R. MOOLCHANDANI, MUNISHWAR NATH BHANDARI

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JUDGMENT Munishwar Nath Bhandari, J. - These appeals have been filed against the order dated 24th December, 2014, passed by the Additional Sessions Judge No.2, Jaipur Metropolitan in Session Case No.32/14, whereby, the accused-appellants have been convicted and sentenced as under : "For offence under section 341 IPC : each accused-appellant has been sentenced to undergo simple imprisonment for 15 days For offence under section 323 IPC - each accused appellant has been sentenced to undergo 6 months rigorous imprisonment and to pay fine of Rs. 200/-, in default of payment of fine to further undergo rigorous imprisonment for 15 days For offence under section 302/34 IPC - each accused-appellant has been sentenced to undergo Life imprisonment and to pay fine of Rs. 5,000/-, in default of payment of fine to further undergo imprisonment for 6 months All the sentences have been ordered to run concurrently. " Brief facts of the case : 2. An FIR bearing No.377/2011 was registered by police on a written report of the complainant - Sitaram Meena. The written report was given at 4.00 PM on 26th November, 2011, alleging that, at around 1.30 PM, while the complainant's father Hari Narayan Meena was cultivating the land by using tractor and complainant and his wife were working in the agricultural field, Gopal s/o Shrawan, his wife Manphooli, Kalu Ram, Radha Kishan, Nathu and Manju Devi came equipped with "Lathi" and axe. They gave beating to his father Hari Narayan Meena. The accused Kalu Ram caused head injury to his wife - Santi by an axe while Manphooli gave "Lathi" blow to the complainant. All the accused thereafter beaten the complainant party with use of "Lathi" and axe. The complainant's father Hari Narayan sustained injuries thus, he fell down. He was taken to Hospital at Chaksu, from where, he was referred to SMS Hospital, Jaipur. On the way to Jaipur, injured Hari Narayan died. 3. On the aforesaid written report, the FIR was registered for the offence under Sections 147, 148, 149, 341, 323 and 302 IPC. After the investigation, charge sheet was filed for the offence under Sections 341, 323 and 302/34 IPC. The case was committed to the Court of Sessions, which, thereupon heard the matter for framing of charges. The charges were framed for the offence under Sections 341, 323 and 302/34 IPC. After the investigation, charge sheet was filed for the offence under Sections 341, 323 and 302/34 IPC. The case was committed to the Court of Sessions, which, thereupon heard the matter for framing of charges. The charges were framed for the offence under Sections 341, 323 and 302/34 IPC. The charges were explained to the accused, which were denied thus, trial commenced. 4. In the trial, the prosecution produced nineteen witnesses apart from twenty two documents to prove their case while statements of the accused were recorded under Section 313 Cr.P.C., 1973 They produced one witness in defence apart from eight documents. The trial Court marshalled the evidence and finding case against all the accused, convicted and sentenced them for the offence under Sections 341, 323 and 302/34 IPC, as referred above. Arguments of learned counsel for the accused-appellants : 5. Learned counsel submits that on a written report - Exhibit P - 1, the FIR - Exhibit P - 2 was registered by the police. In the written report, allegation for causing injuries to the deceased Hari Narayan was not made against the accused in specific terms while head injury to the injured Santi Devi was attributed to accused Kalu Ram, though, no recovery was effected from the accused Kalu Ram while "Lathis" were recovered from two accused, namely, Radha Kishan and Gopal. 6. Even in the court statement by PW - 1 Sitaram and injured witness PW - 3 Santi Devi, allegation to cause head injury to the deceased Hari Narayan was not made against Kalu Ram, rather, injury aforesaid has not been assigned to any of the accused-appellants. There exist general allegations. 7. In view of the above, a case was not made out to convict the accused-appellants for offence under Section 302 IPC even with the aid of Section 34 IPC. It is for the reason that accused did not came with common intention to cause the occurrence. It took place at the spur of moment between two brothers on a dispute about expenses of the well. Learned trial Court has ignored the aforesaid and convicted the accused with the aid of Section 34 IPC, whereas, even premeditation to cause the occurrence is missing so as to make out a case of common intention to cause the occurrence. 8. Learned trial Court has ignored the aforesaid and convicted the accused with the aid of Section 34 IPC, whereas, even premeditation to cause the occurrence is missing so as to make out a case of common intention to cause the occurrence. 8. It is also stated that if the statements of PW - 1 Sitraram and PW - 3 Santi Devi are taken into consideration, they are not corroborated by the postmortem report Exhibit P -7 and otherwise, Exhibit P - 8 injury report and Exhibit P - 9 X-ray report of injured Santi Devi. The testimony of PW - 1 Sitaram and PW - 3 Santi Devi has been believed by the trial Court while discarding the statements of other eye-witnesses PW - 2 Bharat Lal, PW - 8 Kailashi, PW - 10 Banshidhar and PW - 11 Pappu Lal. 9. Sitaram PW - 1 and Santi Devi PW - 3 have made specific allegations against Kalu Ram for causing an injury to the deceased Hari Narayan on his neck with use of axe, whereas, the postmortem report Exhibit P - 7 does not show such an injury and otherwise, cause of death is not any injury on the neck but head injury. The head injury has not been assigned to any of the accused. 10. The injuries to injured Santi Devi were found simple in nature thus, the case against the accused does not travel beyond the offence under Section 323 IPC. In view of the above, the accused-appellants could not have been convicted for the offence under Section 302 IPC with the aid of Section 34 IPC, rather, in absence of specific allegation for causing head injury against anyone apart from premeditation so as to draw common intention of the accused party, they should have been acquitted. 11. It is further stated that after FIR, statement of the witnesses were recorded under Section 161 Cr.P.C., 1973 Therein also, the story given was different than in the court statements. PW 1 - Sitaram and PW 3 - Santi Devi have made improvements in their statements. It should not have been believed by the trial Court to convict the accused and otherwise, the case does not travel beyond the offence under Section 304 Part II IPC, as the accused have not given repeated blows to the deceased. PW 1 - Sitaram and PW 3 - Santi Devi have made improvements in their statements. It should not have been believed by the trial Court to convict the accused and otherwise, the case does not travel beyond the offence under Section 304 Part II IPC, as the accused have not given repeated blows to the deceased. He has sustained one head injury, that too, out of a "Lathi" blow. The "Lathi" generally remain available in the villages. The injury was not caused with the knowledge or intention to cause death of the deceased and otherwise, the deceased he did not die on the spot but due to lack of proper and immediate treatment. Hence, even if the contradiction is ignored, the case would not travel beyond Section 304 Part II IPC, that too, for the accused Gopal, Kalu Ram and Radha Kishan. 12. The accused-appellant Manphooli has been implicated in this case but no recovery has been effected from her. In fact, general allegations have been made against her. The complainant party implicated the family members of the accused party without their participation in the occurrence. The accused Manphooli thus deserves to be acquitted of the offence. The prayer is, accordingly, to cause interference in the order of the trial Court. Arguments of the side opposite : 13. Learned Public Prosecutor and learned counsel for the complainant have opposed the arguments of learned counsel for the accused-appellants. It is submitted that the prosecution could prove its case beyond doubt thus, interference in the order passed by the trial Court may not be made. 14. The arguments of learned Public Prosecutor and learned counsel for the complainant would be considered while dealing with the arguments of learned counsel for the accused-appellants. Finding of the Court : 15. We have considered rival submissions made by learned counsel for the parties and scanned the matter carefully. 16. It is a case where, on a written report Exhibit P - 1, the FIR Exhibit P - 2 was registered by the police. 17. The perusal of the written report - Exhibit P - 1 shows general allegations for causing injury to the deceased Hari Narayan while specific allegations have been made against the accused Kalu Ram for causing head injury to the injured Santi Devi. The weapon assigned therein is an axe. 17. The perusal of the written report - Exhibit P - 1 shows general allegations for causing injury to the deceased Hari Narayan while specific allegations have been made against the accused Kalu Ram for causing head injury to the injured Santi Devi. The weapon assigned therein is an axe. The allegation was made even against the accused Manphooli for causing injury to the complainant. In view of the above, the written report shows general allegations against all the accused for causing injury to the deceased Hari Narayan. After the FIR, the statement of the witnesses were recorded under Section 161 Cr.P.C., 1973 which were submitted by the accused in defence and marked as Exhibit D -1 to D- 8. It is to show that with the improvement, court statements were made by the witnesses. A different story was brought before the Court than stated in the FIR and in the statements under Section 161 Cr.P.C., 1973 18. We find substance in the arguments of learned counsel for the accused-appellants but find that an incident took place on 26th November, 2011. There the deceased received head injury and it was the cause of death as per the postmortem report Exhibit P - 7. The aforesaid has been proved by PW 4 - Rituraj, PW 5 - Mukesh and PW 6 - Abha Sethi. In view of the above, the matter needs a narrow scrutiny to extract the truth. 19. The trial Court has believed testimonies of PW 1- Sitaram and PW 3 - Santi Devi to convict accused for the offence under Section 302 with the aid of Section 34 IPC. The statements of other eye-witnesses PW 2 - Bharat Lal, PW 8 - Kailashi PW 10 - Banshidhar and PW 11 - Pappu Lal have not been given credence by the trial Court and otherwise, we find contradiction in the statements. If the statements of PW 1 - Sitaram and PW 3 -Santi Devi are relied then the allegation against the accused Kalu Ram is for causing injury to the deceased Hari Narayan by using axe but it is on the neck. The aforesaid statement is not corroborated by the postmortem report Exhibit P - 7 and the statement of PW 4 - Rituraj, PW 5 - Mukesh and PW - 6 Abha Sethi. 20. The aforesaid statement is not corroborated by the postmortem report Exhibit P - 7 and the statement of PW 4 - Rituraj, PW 5 - Mukesh and PW - 6 Abha Sethi. 20. PW 1 - Sitaram and PW 3 - Santi Devi have not assigned head injury to any of the accused-appellants. It is apart from the fact that recovery of "Lathi" vide Exhibit P - 7 marked twice and Exhibit P - 11 on disclosure of the accused under section 27 of the Indian Evidence Act, 1872 (for short "the Act of 1872") is from the accused Radha Kishan and Gopal. No recovery has been made from accused Kalu Ram and Manphooli. In fact, no weapon has been recovered from the accused Kalu Ram, though, specific allegation against him is for use of an "axe" to cause the occurrence. 21. The injured PW 3 - Santi Devi has received head injury out of sharp edged weapon assigned to the accused Kalu Ram. The injury report Exhibit P - 8 and X-ray report Exhibit P - 9 have been proved by PW 4 - Rituraj, PW 5 - Mukesh and PW 6 - Abha Sethi. The X-ray report Exhibit P - 9 shows all the three injuries to be simple in nature, thereby, the case in reference to the injured Santi Devi would not travel beyond Section 323 IPC. So far as the injury to the complainant Sitaram is concerned, the report is after fifty seven days of the occurrence thus, cannot be believed. 22. In view of the facts available on record, we find that the prosecution could prove its case to the extent that while the deceased Hari Narayan was cultivating the land by a tractor, Santi Devi and Sitaram were available on the field. The accused party came equipped with "Lathi" and axe and caused injuries to the complainant party. The motive for it has also come on record. It was due to the dispute of money for construction of a well. In view of the above, the accused party came with common intention to cause the occurrence, hence, to that extent, the prosecution could prove its case. 23. The fact further remains that the deceased Hari Narayan had received injuries so as the injured Santi Devi. The death of Hari Narayan is out of head injury. In view of the above, the accused party came with common intention to cause the occurrence, hence, to that extent, the prosecution could prove its case. 23. The fact further remains that the deceased Hari Narayan had received injuries so as the injured Santi Devi. The death of Hari Narayan is out of head injury. It is caused by blunt object and recovery of it is from the accused Gopal and Radha Kishan vide Exhibit P - 7 and P - 11 on their information under Section 27 of the Act of 1872 (Exhibit P - 14 and Exhibit P - 17). No recovery has been effected from the accused Manphooli, though, she has identified the place of occurrence, but, then there exists general allegations against all the accused for causing injuries to the deceased Hari Narayan while specific allegation for causing injury to injured Santi Devi. Taking into consideration that the cause of death is head injury and repeated blows on vital parts have not been given by the accused-appellants, it cannot be said to be a case where the injury was caused with intention and knowledge to cause death of the deceased. The "Lathi" generally remains available in the villages. Conclusion : 24. Taking into consideration the aforesaid, we do not find it to be a case going beyond Section 304 Part II IPC. It is moreso when, the specific allegation for causing head injury has not been attributed against one accused but general allegation exists. Thus, we substitute the conviction of the accused from Section 302/34 IPC to 304 Part II IPC read with Section 34 IPC, that too, for the accused-appellants Gopal, Kalu Ram, Radha Kishan only and not for the accused-appellant Manphooli. The accused Manphooli is acquitted of the all the offence for the reason that allegation against her is to cause injury to the complainant Sitaram but he was not examined immediately, rather, medical examination was after fifty seven days of the occurrence. Hence, the case against Manphooli cannot be accepted and, accordingly, she is acquitted of all the offences. 25. A case for the offence under Section 323 IPC is also made out against the accused-appellants Gopal, Kalu Ram and Radha Kishan. They have caused injuries to injured Santi Devi. Hence, the case against Manphooli cannot be accepted and, accordingly, she is acquitted of all the offences. 25. A case for the offence under Section 323 IPC is also made out against the accused-appellants Gopal, Kalu Ram and Radha Kishan. They have caused injuries to injured Santi Devi. All the injuries were found to be simple in nature as per Exhibit P - 9 (X-ray report) thus, they are convicted for the offence under Section 323/34 IPC. 26. Since, we have substituted conviction of the accused Kalu Ram, Gopal and Radha Kishan from Section 302/34 IPC to Section 304 Part II IPC read with Section 34 IPC, we sentence them as under : (i) For offence under Section 304 Part II IPC read with Section 34 IPC - five years' rigorous imprisonment with fine of Rs. 5000/- each. In case of default of payment of fine, to further undergo six months' simple imprisonment. (ii) For offence under Section 323 IPC read with Section 34 IPC - one year's rigorous imprisonment with fine of Rs. 200/- each. In default of payment of fine, to further undergo, fifteen days' rigorous imprisonment. (iii) Both the sentences would run concurrently. The accused-appellants Gopal and Radha Kishan are on bail. Their bail bonds are cancelled. 27. The accused-appellant Manphooli is already on bail. Her bail bonds are discharged. As per Section 437A of the Code of Criminal Procedure, the appellant Manphooli is directed to furnish a personal bond in the sum of Rs. 25,000/- with one surety in the like amount before the Registrar (Judicial) of this Court, which will be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant will appear before the Supreme Court on receipt of notice thereof. With the aforesaid substitution of conviction and sentence, both the appeals are partly allowed. Record be sent back to the trial Court. A copy of this order be placed in connected file.