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2021 DIGILAW 710 (RAJ)

Darga Ram Heeragar v. State of Rajasthan

2021-03-25

DEVENDRA KACHHAWAHA, SANDEEP MEHTA

body2021
JUDGMENT : Sandeep Mehta, J. 1. The appellant Darga Ram has been convicted and sentenced as below vide the judgment dated 03.06.2016 passed by the learned Sessions Judge, Sirohi in Sessions Case No. 30/2012:- Offence for which convicted Sentence awarded Section 302 IPC Life imprisonment alongwith a fine of Rs.25,000/- and in default of payment of fine, further to undergo rigorous imprisonment of six months. Section 504 IPC Four months’ rigorous imprisonment alongwith a fine of Rs.2,000/- and in default of payment of fine, further to undergo rigorous imprisonment of one month. 2. Being aggrieved of his conviction and the sentences awarded to him, the appellant has preferred the instant appeal under Section 374 (2) CrPC. 3. Succinctly stated facts of the case are as below:- The Parcha Bayan (Ex. P/2) of Smt. Laxmi Devi (P.W. 2) was recorded by the SHO, Police Station Revdar, District Sirohi on 12.09.2012 at the Lions General Hospital, Mehsana, wherein, she stated that she was a resident of village Marol, District Sirohi. Two days prior, i.e. on 10.09.2012, at about 1 o'clock in the afternoon, she and her daughter Rakma @ Kooka had gone to her brother-in-law Jaisa Ji's house. A while later, her nephew Vachna S/o Babu came and informed her that Darga Ram S/o Vaga Ji had verbally abused Hansa and restrained him on his way home and then he had assaulted him with a lathi causing him head injury. The informant and her daughter rushed home and saw her husband Hansa lying unconscious in the courtyard outside their house and was bleeding from the head injury. The incident had been witnessed by her brothers-in-law Chuna Ram (PW. 3) and Babu Ram (PW. 5). Her husband was taken to the Government Hospital, Revdar, from where, the Medical Officer referred him to a higher centre for treatment, on which, he was taken to the Mehsana hospital. Hansa Ram was admitted to the hospital but was unable to speak. On the basis of the aforesaid report, an FIR No. 85/2012 came to be registered at the Police Station Revdar, District Sirohi, for the offences under Sections 341, 323 and 504 IPC. Investigation was undertaken during which, it came to the light that Hansa did not regain consciousness and surgery was advised as a life protective measure, but his family members refused to give permission for operation and got him discharged against the medical advice. Investigation was undertaken during which, it came to the light that Hansa did not regain consciousness and surgery was advised as a life protective measure, but his family members refused to give permission for operation and got him discharged against the medical advice. Hansa Ram passed away on 22.09.2012. The autopsy of the dead body was carried out at the Government Hospital, Revdar on 22.09.2012 by Dr. Surendra Kumar Jain (PW. 18), who issued a postmortem report (Ex. P/28), opining that the cause of the death of Hansa Ram was coma due to head injury. The appellant was arrested and after conducting investigation, a charge-sheet was filed against him in the Court of the Magistrate concerned for the offences under Sections 302, 341 and 504 IPC. As the offence under Section 302 IPC was exclusively triable by the court of Sessions, the case was committed to the Court of Sessions Judge, Sirohi, where charges were framed against the accused-appellant for the above offences. He pleaded not guilty and claimed trial. The prosecution examined as many as 18 witnesses to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing in the prosecution evidence, the accused denied the same and stated that when he reached home, he saw that the victim Hansa Ram had caught hold of his wife. He got enraged on witnessing this scene and therefore, he picked up a stick lying at the spot and hit the deceased Hansa Ram in a fit of rage. Two witnesses namely Jamna Devi (D.W. 1) and Manju Kumari (D.W. 2) were examined in defence. 4. After hearing arguments advanced by the Public Prosecutor and the defence counsel and appreciating the evidence available on record, the trial court proceeded to convict and sentence the appellant as above. Hence, this appeal. 5. Mr. Pradeep Shah, learned counsel representing the appellant, vehemently and fervently contended that the entire prosecution case is false and fabricated. The F.I.R. was lodged after undue delay of two days and there is no tangible explanation for the delay in lodging of the FIR. He urged that, as a matter of fact, the deceased came to the house of the appellant and was trying to molest the appellant's wife Smt. Jamna Devi. The F.I.R. was lodged after undue delay of two days and there is no tangible explanation for the delay in lodging of the FIR. He urged that, as a matter of fact, the deceased came to the house of the appellant and was trying to molest the appellant's wife Smt. Jamna Devi. Coincidentally, the appellant reached home, saw his wife being harassed by the deceased and acting under grave and sudden provocation, he picked up a stick lying nearby and gave blows thereof to the deceased. Mr. Shah further urged that the injuries received by Hansa in the incident were not life endangering. Hansa Ram was taken to Mehsana for treatment and the doctors at Mehsana hospital advised that the injured should undergo surgery to avoid complications, but his family members refused to give consent to operate him and got him discharged against medical advice and due to this reason, complications set in which proved fatal. He urged that as a matter of fact, the accused acted in the exercise of right of private defence of his wife while inflicting the injuries to the deceased and therefore, the offence, if any, would not travel beyond Section 325 IPC. His alternative submission was that, even if the prosecution case is accepted to be true on the face of the record, manifestly, the accused appellant inflicted the injuries to the deceased after an unanticipated quarrel and while acting under grave and sudden provocation and thus, the offence, if any, would not travel beyond Section 304 Part II IPC. On these submissions, Mr. Shah has sought acceptance of the appeal. 6. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that the evidence of the eye-witnesses Chuna Ram (P.W. 3) and Babu Ram (P.W. 5) is absolutely reliable and sufficient to conclude the guilt of the appellant. Both the witnesses have given cogent evidence by stating that Hansa Ram was proceeding towards his house when the accused appellant came across and started hurling abuses at him without any justification whatsoever. When Hansa Ram requested him to refrain from acting in this offensive manner, the accused rushed to his house, picked up a wooden stick, came back and delivered repeated blows on the head of Hansa Ram, which proved fatal. When Hansa Ram requested him to refrain from acting in this offensive manner, the accused rushed to his house, picked up a wooden stick, came back and delivered repeated blows on the head of Hansa Ram, which proved fatal. Learned Public Prosecutor urged that, as the accused-appellant inflicted repeated blows with a thick wooden stick on the head of the unarmed victim, the intention to commit murder can very well be attributed to the appellant. He urged that merely because the Medical Officer stated that the life of the deceased could have been saved by surgical procedure, that by itself cannot be a reason to tone down the offence from Section 302 IPC to a lower degree because the injuries inflicted by the accused caused deep damage in the brain of Hansa Ram and there was hardly any possibility of his survival even if the surgical procedure was carried out. Regarding the defence evidence, the contention of the learned Public Prosecutor was that the version set out in the evidence of defence witnesses is totally unbelievable and concocted because no complaint whatsoever was made by Smt. Jamna Devi (D.W. 1) regarding she having been molested by the victim and it is for the first time, while being examined during defence evidence, that at a highly belated stage, this fictitious theory was propounded. He thus urged that the appeal lacks merit and should be dismissed and the impugned judgment be affirmed. 7. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment. We have minutely re-appreciated the evidence led by the parties. 8. It is an admitted position that the appellant and the deceased are closely related to each other. The prosecution case hinges primarily on the testimony of Chuna Ram (P.W. 3) and Babu Ram (P.W. 5). Both the witnesses gave similar evidence alleging that they were at their home on the day of the incident. Darga Ram was sitting at his house. The incident took place at about 2 o'clock in the afternoon. Hansa Ram came back to his house for having lunch. At that time Darga Ram started verbally abusing Hansa Ram. Chuna Ram (P.W. 3) pleaded with Darga Ram to refrain from having this offensive attitude, on which Darga Ram threatened him that he would be the next, if he intervened. Hansa Ram came back to his house for having lunch. At that time Darga Ram started verbally abusing Hansa Ram. Chuna Ram (P.W. 3) pleaded with Darga Ram to refrain from having this offensive attitude, on which Darga Ram threatened him that he would be the next, if he intervened. Darga Ram then went inside his house, picked up a wooden side stick of a cot, came back and gave successive blows thereof on the shoulder and the head of Hansa Ram, who was badly hurt and fell down at the spot. Soon thereafter, Hansa Ram's wife and daughter arrived there. Hansa Ram was boarded onto an auto rickshaw and was taken to Revdar Hospital and then they went to the Police Station Revdar. The doctor referred Hansa Ram to Mehsana. A suggestion was given to both the witnesses regarding the incident having taken place in the house of Darga Ram, which they denied. The witnesses admitted that they made no effort whatsoever to snatch the stick from Darga Ram, explaining that if they had tried to do so, they too would have been beaten up by him. The witnesses denied the suggestion that Hansa Ram had entered the house of Darga Ram and was trying to molest his wife and that the incident took place because of this reason. On overall appreciation of the evidence of these witnesses, it is clear that neither of them stated that the appellant had any previous enmity with the deceased nor did they clarify that there was any immediate cause preceding the incident. The FIR came to be lodged after two days of the incident, inspite of the fact that the witness Chuna Ram (P.W. 3) claimed that they went to the Police Station Revdar on the very day of the assault. From the evidence of these two eyewitnesses, it is clear that the appellant was casually sitting at his house having lunch and the deceased had returned from his field for eating food. Neither of the two eyewitnesses stated that any interaction took place between the deceased and the accused, which could have precipitated the incident. From the evidence of these two eyewitnesses, it is clear that the appellant was casually sitting at his house having lunch and the deceased had returned from his field for eating food. Neither of the two eyewitnesses stated that any interaction took place between the deceased and the accused, which could have precipitated the incident. In this background, the evidence of the two eyewitnesses has to be appreciated with a reservation, considering the fact that they did not make any attempt whatsoever to lodge a report at the police station promptly and that they have offered no explanation whatsoever as to why the quarrel broke out. It is further relevant to mention here that both the witnesses tried to state that the incident took place inside the house of the deceased, whereas it is manifested from the evidence of the Investigating Officer as well as the site plan (Ex. P/1), that the incident took place in an open space between the houses of the accused, deceased and the witnesses. In this background, we have reason to doubt that the eye-witnesses have tried to hide the genesis of the occurrence. 9. Having appreciated the evidence of the two eyewitnesses, we now proceed to discuss the medical evidence in light of the submissions of Mr. Shah. 10. Hansa Ram after having received the injuries in the incident dated 10.09.2012 was immediately taken to the Community Health Center, Revdar, where he was examined by Dr. Sumer Singh Bhati (P.W. 11), who prepared the injury report (Ex. P/10) while taking note of the fact that three injuries were visible on the person of Hansa Ram, viz. (1) Lacerated wound 3 in. x 1/2 in. scalp deep on the parietal region. (2) Lacerated wound 1 in. x 1/2 in. scalp deep behind left ear. (3) Swelling 2 in. x 2 in. on the left knee. All the three injuries were caused by blunt weapon and the opinion regarding the nature of injuries was kept reserved for CT Scan/XRay Examination. The injured was referred to higher centre for further management. The Medical Jurist also stated that the SHO, Police Station Revdar forwarded a letter dated 18.09.2012 (Ex. P/11) for seeking his opinion regarding the nature of injuries. He marked his opinion on the above-mentioned letter (Ex. P/11) observing that the injuries sustained by the deceased were sufficient to cause death. The injured was referred to higher centre for further management. The Medical Jurist also stated that the SHO, Police Station Revdar forwarded a letter dated 18.09.2012 (Ex. P/11) for seeking his opinion regarding the nature of injuries. He marked his opinion on the above-mentioned letter (Ex. P/11) observing that the injuries sustained by the deceased were sufficient to cause death. In his cross-examination, the witness refuted the suggestion that there existed a possibility of the injured being saved if proper treatment was given to him. He admitted that it was not mentioned in the outdoor patient slip (Ex. P/12) that the injured was unconscious when he was brought to the hospital. On appreciating evidence of this witness, it can easily be inferred that his opinion regarding the nature of injuries is purely conjectural because he did not have the opportunity to see the investigation reports, viz. CT Scan/X-Ray etc. nor did he treat the injured. 11. As has been mentioned above, Hansa Ram was referred to a higher center from Revdar. He was taken to Mehsana and was admitted to the Champa Hospital. Dr. Mahesh Trivedi (P.W. 17), in-charge of the hospital appeared in the witness box and stated that Hansa Ram was admitted to his hospital at about 08.00 p.m. on 10.09.2012. He was unconscious and therefore, was unable to speak. Left side of his body had been paralyzed. A stitched wound ad measuring 5 cm. was visible on the left parietal area of the head. CT Scan of Hansa Ram was conducted and it was noticed that a comminuted depressed fracture was existing on the left temporoparietal bones. Temporoparietal haemorrhage with associated haematoma was also noticed. The family members of the injured were advised that the condition of the patient was serious and that surgery had to be undertaken for saving his life. However, the family members refused to give consent for the operation and thus, the patient was treated conservatively. Considering his serious condition, the patient was referred to the Lions Hospital, Mehsana on 12.09.2012 at 01.45 p.m. However, the patient's relatives brought him back to his hospital on the very same night. On 21.09.2012, the patient's relatives got him discharged from the hospital and thus, the remark "Discharged Against Medical Advice" was appended on the discharge summary (Ex. P/29 and Ex. P/30). On 21.09.2012, the patient's relatives got him discharged from the hospital and thus, the remark "Discharged Against Medical Advice" was appended on the discharge summary (Ex. P/29 and Ex. P/30). The officers of the Police Station Revdar sought opinion from the witness regarding the nature of injuries of Hansa Ram, to which, he responded vide certificate (Ex. P/14) mentioning that the injuries were serious and life threatening. In cross-examination, the witness admitted that there were slender chances of the patient's survival, if he was operated on. He advised the family members of the patient not to get him discharged from the hospital and to continue his treatment, but they did not pay heed to his advice. 12. Dr. Surendra Kumar Jain (P.W. 18) carried out the postmortem of the dead body of Hansa Ram and prepared a report (Ex. P/28) thereof at the Government Hospital Revdar on 22.09.2012. On opening the skull, he noticed an extradural haematoma on the temporal parietal area, underneath which there was a depressed fracture. The doctor opined that the cause of death of Hansa Ram was coma as a result of head injury. The doctor expressed that only one injury had been noticed on the head of the deceased when the autopsy was undertaken. 13. At this juncture, it would be relevant to mention here that Laxmi Devi (P.W. 2), wife of the deceased, stated in her examination-in-chief that her husband remained admitted in the Mehsana hospital for about 12 days where after, he was brought back home, where he passed away. Nonetheless, she did not state anything about the condition of Hansa Ram after he was brought back from the hospital. In cross-examination, Laxmi Devi stated that the doctor informed them that there was no guarantee of the deceased surviving despite the surgical procedure and that is why, they did not consent for the same. After she received information regarding the incident, she rushed home and saw her husband lying down on the ground. She did not ask anyone about the incident and immediately took her husband to the hospital. 14. The investigation of the case was undertaken by Rajendra Singh (P.W. 16), SHO, Police Station Revdar. He stated that on 10.09.2012, he received an information from the CHC, Revdar at about 02.50 p.m., that a person had been hurt in an assault and had been brought to the hospital. 14. The investigation of the case was undertaken by Rajendra Singh (P.W. 16), SHO, Police Station Revdar. He stated that on 10.09.2012, he received an information from the CHC, Revdar at about 02.50 p.m., that a person had been hurt in an assault and had been brought to the hospital. He immediately deputed Head Constable Bhanwar Singh to proceed to the hospital after making an entry in the Roznamcha (Ex. P/22). In the Roznamcha report No. 299, which the Constable made after coming back from the hospital, it was noted that the family members were asked to give a report, but they stated that they would first get the injured treated and then the report would be submitted. It was also noted that the injured was not in a position to give a statement. Efforts were made to get the statement of Hansa Ram recorded at the Mehsana hospital, but he was not in a position to do so. The Parcha Bayan (Ex. P/2) of Laxmi Devi, wife of Hansa Ram, was recorded by Head Constable Bhanwar Singh at Lions General Hospital, Mehsana on 12.09.2012 and on the basis thereof, the FIR No. 85/2012 was registered. After receiving medical opinion regarding the nature of injuries, offence under Section 307 IPC was added to the case and the accused was arrested. The blood stained "Lath" allegedly used to assault the deceased was recovered vide memo Ex. P/5 on the basis of the information supplied by the accused under Section 27 of the Evidence Act (Ex. P/26). The treatment papers of Hansa Ram were collected. The postmortem report (Ex. P/28) was taken on record and thereafter, charge-sheet was filed against Darga Ram for the offences under Sections 302, 341 and 504 IPC. In cross-examination, the witness refuted the defence suggestion that Hansa Ram was initially brought to the Police Station Revdar. He feigned ignorance as to whether any opinion was taken from the hospital regarding the condition of Hansa Ram to give statement on 10.09.2012. He also denied the suggestion that during investigation, he collected evidence indicating that Hansa Ram had entered the house of Darga Ram on the day of the incident and tried to molest his wife and that the incident took place because of this indecent behaviour of Hansa Ram. 15. He also denied the suggestion that during investigation, he collected evidence indicating that Hansa Ram had entered the house of Darga Ram on the day of the incident and tried to molest his wife and that the incident took place because of this indecent behaviour of Hansa Ram. 15. On overall appreciation of the evidence of the material witnesses referred to supra, we are of the definite opinion that the delay in lodging the First Information Report creates a doubt on the truthfulness of the prosecution. It may be stated here that as per the Roznamcha entry No. 299 (Ex. P/22), the officers of the Police Station Revdar reached the CHC, Revdar on receiving information that Hansa Ram had been brought there for treatment. The reluctance of the family members in giving a report right then is explainable because they were anxious to get the injured treated on a priority basis, but there was no reason as to why a succinct statement could not have been given to the Constable Bhanwar Singh regarding the manner in which the incident took place. As per Laxmi Devi (P.W. 2), her husband was taken to Mehsana in a Bolero vehicle and Pushpa, Sita, Tara Ji and she herself accompanied Hansa Ram in the vehicle. The eyewitness Chuna Ram (P.W. 3), real brother of the deceased, and Babu Ram (P.W. 5), his cousin brother, were at the village and could have proceeded to the Police Station Revdar for lodging the report. However, both these witnesses did not make any such attempt whatsoever. These glaring facts make the delay in lodging of the report an important factor while appreciating the evidence of the prosecution witnesses more particularly, while considering the defence theory. A lurking doubt is created that the prosecution witnesses were trying to hide the truth. The defence theory cannot be totally discarded simply because the defence witnesses did not lodge a report of the molestation incident at the police station concerned. It may be stated here that as Hansa Ram had received serious injuries in the incident, it is unlikely that the report of the relatives of the accused would have been accepted by the police officers. Upon an overall appreciation of the material available on record, we are of the view that the prosecution is guilty of hiding the true genesis of the occurrence. 16. Upon an overall appreciation of the material available on record, we are of the view that the prosecution is guilty of hiding the true genesis of the occurrence. 16. For the sake of repetition, it may be mentioned here that the accused and the deceased had no animosity whatsoever, which could have suddenly precipitated the incident, in which the accused became enraged to such an extent that he gave repeated blows with a stick of a cot to the victim. Apparently, thus, we can presume that the incident must have been preceded by some untoward incident between the victim and the accused, which led to a verbal altercation followed by the actual assault. 17. As per the evidence of the Medical Officer Dr. Surendra Kumar Jain (P.W. 18), who conducted autopsy on the dead body of Hansa Ram, noticed only one grievous injury on the head, which proved fatal. It is also an admitted position that the family members of Hansa Ram did not consent for his treatment as opined by Dr. Mahesh Trivedi (P.W. 17) and got him discharged against the medical advice. 18. Defence witnesses Jamna Devi (D.W. 1) and Manju Kumari (D.W. 2), wife and daughter of the accused respectively, gave evidence to the effect that Hansa Ram entered their house when both the ladies were all alone. Jamna Devi was cooking food. Hansa Ram asked the whereabouts of Darga Ram. On coming to know that he was not in the house, Hansa Ram caught hold of Jamna Devi and was trying to outrage her modesty, at which point, Darga Ram came around. He raised his voice and asked the accused to leave his wife. Being enraged, as any normal human being would have been, by the misdemeanor of Hansa Ram, the accused appellant picked up a stick lying at the scene of occurrence and inflicted blows thereof to Hansa Ram. Thus, without any doubt, the accused while inflicting injuries to Hansa Ram, was acting in the spur of the moment and the attack was preceded by grave and sudden provocation caused by the act of the deceased himself. Thus, the offence committed by the accused cannot be covered by the definition of murder. 19. Thus, without any doubt, the accused while inflicting injuries to Hansa Ram, was acting in the spur of the moment and the attack was preceded by grave and sudden provocation caused by the act of the deceased himself. Thus, the offence committed by the accused cannot be covered by the definition of murder. 19. In this background, we are of the opinion that the accused-appellant had no intention to commit the murder, rather he appears to have acted out of grave and sudden provocation caused by the unsavory advances of the deceased towards his wife. 20. In wake of the facts noted and the discussion made hereinabove, we are of the opinion that the accused while inflicting injuries to the deceased Hansa Ram cannot be clothed with the intention of causing such bodily injury which was likely to cause death. The act of the accused would definitely be governed by the exception firstly to Section 300 IPC. Thus, the conviction of the accused-appellant deserves to be toned down from one under Section 302 IPC to Section 304 Part II IPC. For reaching this conclusion, we are guided by the observations made by the Hon'ble Supreme Court in the case of Stalin vs. State represented by the Inspector of Police [Criminal Appeal No. 577/2020 decided on 09.09.2020]. 21. Accordingly, we modify the impugned judgment dated 03.06.2016 passed by the learned Sessions Judge, Sirohi in Sessions Case No. 30/2012, in the terms that the conviction of the appellant under Section 302 IPC is set aside and instead he is convicted for the offence under Section 304 Part II IPC and on this count, he is sentenced to undergo 8 years' rigorous imprisonment and to pay a fine of Rs. 5,000/- and in default of payment thereof, he shall further undergo six months' simple imprisonment. The appeal is partly allowed in these terms.