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2022 DIGILAW 1554 (RAJ)

Tejmal S/o Juwana v. State of Rajasthan

2022-05-13

BIRENDRA KUMAR, PANKAJ BHANDARI

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JUDGMENT : BIRENDRA KUMAR, J. 1. All the eight appellants faced trial in Sessions Case No. 31/2013 arising out of FIR No. 27/2013 registered with Police Station Hindoli for offences under Sections 147, 148, 341, 323/149 and 302/149 IPC. On trial before the learned Sessions Judge, the appellants were found guilty vide impugned judgment dated 11.06.2015 and on the same day, the learned trial Judge passed the following sentences: U/s 147 IPC 6 months rigorous imprisonment U/s 148 IPC one year rigorous imprisonment U/s 341 IPC 15 days simple imprisonment U/s 323/149 IPC 3 months rigorous imprisonment U/s 302/149 IPC Life imprisonment and fine of Rs. 2,000/- in default six months simple imprisonment Sentences are to run concurrently. 2. The prosecution examined altogether 19 witnesses and 61 documents were exhibited from Ex.P.1 to Ex.P.61. Among the prosecution witnesses, only two are eye-witnesses. They are PW-6 Satyanarayan and PW-16 Devraj. The informant of the case PW-9 Bhimraj is not an eye-witness of the occurrence. 3. According to the First Information Report submitted by PW-9 Bhimraj on 09.01.2013, father of the informant namely Kalyan was going to his village from his well on the field side. PW-16 Devraj was driving the motorcycle, whereas PW-6 Satyanarayan was sitting on the middle and Kalyan was sitting behind Satyanarayan. When they reached near talai at 11 a.m. found that someone had put thorn hedges on the way. From the hedges, all the eight appellants came out. They were armed with axes, gandasis and wood sticks. All the accused persons started assault against the father of the informant and when Devraj and Satyanarayan tried to intervene, they were also assaulted. On hearing alarm, Prakash and Gangabishan reached there. Thereafter, the accused persons fled away. The injured was taken to the hospital. The informant further states that dispute for the said well between the parties was reason for old discord which led to the occurrence of assault against the father of the informant. 4. PW-6 Satyanarayan and PW-16 Devraj have supported the prosecution case as eye-witnesses of the occurrence to the extent that Satyanarayan, Devraj and Kalyan were going on the motorcycle from the well to their village and on the way, the accused persons committed assault to Kalyan which resulted in his death during the course of treatment. On perusal of entire testimony of PW-6 and PW-16, it appears that the witnesses are consistent and reliable. On perusal of entire testimony of PW-6 and PW-16, it appears that the witnesses are consistent and reliable. 5. Learned counsel for the appellants contends that even if the testimonies of PW-6 and PW-16 are believed, it is not the prosecution case that the appellants were carrying any intention to commit murder. The doctor has found injury on non-vital parts of the body, i.e. legs and arms, whereas the accused persons had sufficient opportunity to commit injury on vital part as well, if they would have intended to commit murder. Therefore, conviction under Section 302 of IPC is apparently illegal. 6. Learned Public Prosecutor contends that the learned trial Judge has meticulously considered all the prosecution evidences specially of the eye-witnesses, and the charges were found proved against the appellants which requires no interference. 7. We have perused the material on record. 8. On the date of occurrence itself, PW-3 Chotu Lal Dadhich had examined injuries of deceased-Kalyan and noticed as follows: “1. Cut wound at the left leg lower part. 2. Punctured wound near knee. 3. Punctured wound at the right leg. 4. Cut wound at the right leg on front side. 5. Swelling near left wrist. 6. Punctured wound at the left palm. 7. Punctured wound near right wrist. 8. Swelling with redness on left knee. 9. Swelling at the occipital region.” The head injury was simple in nature and could have been possible by fall on any hard substance. 9. PW-12 Dr. Anil Saini, at the time of postmortem examination, noticed as follows: “1. Right forearm was fractured. 2. The humerus bone of left arm was fractured. 3. There was swelling at the left wrist and radius bone was fractured. 4. Redness on the left arm. 5. Fracture of bone on the left leg. 6. Cut injury at the right leg. 7. Punctured wound penetration like at the right leg causing fracture of tibia and fibula. 8. Cut wound at the left leg causing fracture of tibia and fibula. 9. Swelling near left knee with fracture of bone. 10. A penetrating wound on left palm.” The cause of death was haemorrhage and shock due to profuse bleeding. 10. Learned counsel for the appellants has relied upon judgment of a Division Bench of this Court in the case of Kanhaiya Lal vs. State of Rajasthan, 2014 (3) Cr. 9. Swelling near left knee with fracture of bone. 10. A penetrating wound on left palm.” The cause of death was haemorrhage and shock due to profuse bleeding. 10. Learned counsel for the appellants has relied upon judgment of a Division Bench of this Court in the case of Kanhaiya Lal vs. State of Rajasthan, 2014 (3) Cr. L.R. (Raj.) 1169, wherein incised wound was found by the doctor on middle part of the head and abrasion on the right leg. The Division Bench has relied upon following judgments: 1. Kapoor Singh vs. State of Pepsu, AIR 1956 SC 654 2. Shanmugam @ Kulahdavelu vs. State of Tamil Nadu, AIR 2003 SC 209 3. Sukhbir Singh vs. State of Haryana, (2002) 3 SCC 327 4. Mahesh vs. State of Madhya Pradesh, (1996) 10 SCC 668 5. Jagroop Singh vs. State of Haryana, (1981) 3 SCC 614 It was held by the Division Bench that the prosecution failed to prove a case under Section 302 IPC rather the proved charge was under Section 304-I of IPC. 11. In the case of Hariram vs. State of Rajasthan through P.P. 2021 (2) WLC (Raj.) UC 52, the injuries found were bruises at the chest and abdomen of the deceased. Considering the prosecution evidence on record, the Division Bench held that the accused cannot be clothed with either intention or knowledge, that by causing such injury on chest of victim, that would cause his death. The court had relied on Kashi Ram and Others vs. State of Madhya Pradesh, AIR 2001 SC 2902 , Dev Raj and Others vs. State of Himachal Pradesh, AIR 1994 SC 523 and Tara Chand and Others vs. State of Haryana, AIR 1971 SC 1891 . 12. Considering the material on record and the settled principles of law, with regard to appreciation of evidence to prove the charge under Section 302 of IPC, we are of the considered view that the prosecution has failed to proved the charge under Section 302 of IPC in view of the allegations of commission of assault by eight persons to the deceased but the injuries caused were on non-vital parts of the body. Had the accused persons any intention to cause death, they were well armed with weapon of cutting, they could have used the same on any vital part of the body. Had the accused persons any intention to cause death, they were well armed with weapon of cutting, they could have used the same on any vital part of the body. However, the prosecution has proved and established that the accused persons had knowledge while causing injury of cut at the limbs that the profuse bleeding might cause death. Therefore, we are of the opinion that this one is a case wherein conviction under Section 302 of IPC is fit to be altered under Section 304-II of IPC. 13. Accordingly, while upholding the conviction and sentence for offence under Sections 147, 148, 341, 323/149 of IPC for offence u/s 304 Part-II, we deem it proper to impose sentence of ten years Rigorous Imprisonment and fine of Rs. 2000/- each on all the appellants and on non payment of fine, appellants to undergo six months Simple Imprisonment. 14. In the result, this appeal is party allowed. All pending application, if any, stands disposed of. 15. D.B. II Suspension of Sentence Application No. 729/2021 and D.B. Suspension of Sentence Application No. 733/2021 also stands disposed of.