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2023 DIGILAW 1578 (RAJ)

Layakram v. State of Rajasthan

2023-08-22

BHUWAN GOYAL, PANKAJ BHANDARI

body2023
JUDGMENT : (Pankaj Bhandari, J.) The accused appellant - Layakram has preferred this appeal aggrieved by the judgment of conviction and order of sentence dated 18.08.2017 passed by the Additional Sessions Judge No.2, Kishangarhbas, Alwar, whereby the accused appellant has been convicted for offence under Sections 148 and 302/149 of the Indian Penal Code (hereinafter referred to as "the IPC"). For offence under Section 302/149 of IPC, the appellant has been sentenced to life imprisonment and a fine of Rs.25,000/- and in default of payment of fine, to further undergo 3 months rigorous imprisonment. For offence under Section 148 of IPC, the accused appellant has been sentenced to 3 years rigorous imprisonment and a fine of Rs.1,000/- and on non-payment of fine, to further undergo 1 month rigorous imprisonment. 2. Succinctly stated the facts of the case are that an FIR bearing No.290/2012 (Exhibit-P36) was registered at Police Station, Mundawar, District Alwar on a written report (Exhibit-P1) on 06.08.2010. In the written report, it was stated that at around 8:00-9:00 am, the complainant's mother and wife saw accused Hargyan, Layakram, Mahesh, Mangal, Smt. Leelee wife of Hargyan and Bharpai wife of Layakram digging the foundation in the plot belonging to them. The complainant's mother-Basanti asked them to stop, at which, Hargyan having pharsi, Layakram and Mahesh having axe, Mangal having phawada and other ladies, having phawada & bankadi, attacked upon her, who expired on the spot. The complainant's wife-Santosh raised an alarm, on which, the complainant and his brother-Veer Singh reached the spot. All the accused ran away immediately thereafter from the spot. 3. On the said written report, the investigation was done by the police and after due investigation, the police filed charge-sheet against the other co-accused of this case i.e. Hargyan, Mangal Singh, Mahesh Kumar and Smt. Leelee wife of Hargyan, in which, after recording of the evidence, the trial Court convicted them vide judgment and order dated 18.07.2014. The present accused-appellant was absconding and was arrested on 08.09.2014 and thereafter, a supplementary charge-sheet was also filed against him on 18.11.2014. The case was committed to the Court of Sessions. Trial Court framed charges against the accused-appellant on 09.03.2017. He denied the charges levelled against him and sought trial, upon which, as many as 23 witnesses were examined and 45 documents were exhibited on behalf of the prosecution. The case was committed to the Court of Sessions. Trial Court framed charges against the accused-appellant on 09.03.2017. He denied the charges levelled against him and sought trial, upon which, as many as 23 witnesses were examined and 45 documents were exhibited on behalf of the prosecution. Explanation of the accused appellant was recorded under Section 313 of Criminal Procedure Code (hereinafter referred to as "the Cr.P.C."). After hearing the arguments of both the parties, the learned trial Court has convicted and sentenced the accused-appellant as mentioned herein-above. 4. It is contended by the learned counsel appearing on behalf of the accused-appellant that the case of the appellant is akin to that of the other co-accused, who were convicted and sentenced vide judgment and sentence dated 18.07.2014. It is also contended that in D.B. Criminal Appeal No.847/2014 titled as 'Hargyan & Ors. v. The State of Rajasthan through PP' filed by the other co-accused of this case i.e. Hargyan, Mahesh Kumar, Mangal Singh and Smt. Leelee, the Division Bench of this Court has acquitted accused - Smt. Leelee and Mangal Singh for offence under Section 148 and 302 of IPC, but had altered the sentence of accused - Hargyan and Mahesh Kumar to the offence under Section 304 Part-II of IPC and had sentenced them to undergo 8 years rigorous imprisonment with fine of Rs.5,000/-, in case of default to pay fine, to further undergo 3 months simple imprisonment. The Division Bench has acquitted accused-Mahesh Kumar and Hargyan for offence under Section 148 of IPC. 5. It is contended that the case of the accused-appellant is akin to that of Hargyan and Mahesh Kumar. The conviction of accused-appellant for the offence under Sections 302 & 148 of IPC should be set aside and his conviction should be altered for the offence under Section 304 Part-II of IPC. 6. Learned Additional Government Advocate appearing for the State has not disputed the fact that the case of accused-appellant is akin to that of Hargyan and Mahesh Kumar. 7. We have considered the submissions and have carefully gone through the material on record. 8. Admittedly, as per the FIR, allegation against Hargyan was of carrying a pharsi and against present appellant-Layakram and Mahesh were carrying axe. As per the judgment of the Division Bench, the incident took place on the spur of the moment. 7. We have considered the submissions and have carefully gone through the material on record. 8. Admittedly, as per the FIR, allegation against Hargyan was of carrying a pharsi and against present appellant-Layakram and Mahesh were carrying axe. As per the judgment of the Division Bench, the incident took place on the spur of the moment. The case of the accused-appellant is akin to that of Hargyan, who was carrying pharsi. The allegation against present accused-appellant is of causing injury on the face of the deceased. The injury, which was assigned to the present appellant, is incised wound over the face starting from right side of chin going below the right ear with size 14×3 cm and is bony deep, which resulted into fracture of underlying right mandible bone. 9. As far as the evidence is concerned, Veer Singh (PW-2), son of the deceased, has stated that when the accused side was digging the foundation, the dispute started. Hargyan caused injury with a lathi on the jaw; Layakram, the present accused-appellant, gave a blow with an axe on the right side of the jaw of the deceased and Mahesh Kumar gave a blow with an axe on the head and the deceased died due to the above injuries. Santosh (PW-3), daughter of the deceased, has also deposed that the dispute started when the accused side was digging the foundation. Hargyan and Layakram gave a blow on the neck of the deceased. Suraj (PW-6) has also deposed that the accused side were trying to take possession of the disputed land by digging the foundation. He has admitted that at the disputed place, they have 1/4th share and the accused are also having their share. Thus, from perusal of the evidence, it is evident that the dispute took place on the spur of the moment when the deceased stopped the accused side from digging the foundation and role of the present accused-appellant is akin to that of other co-accused. 10. Since the incident took place on the spur of moment and the case of the accused-appellant is akin to that of Hargyan, we deem it proper to partly allow the present appeal. 10. Since the incident took place on the spur of moment and the case of the accused-appellant is akin to that of Hargyan, we deem it proper to partly allow the present appeal. Consequently, the appeal filed by the accused-appellant is partly allowed; his conviction under Sections 302 & 148 of IPC is set aside and instead, he is convicted for offence under Section 304 Part-II of IPC and sentenced to 8 years rigorous imprisonment and a fine of Rs.5,000/-, in case of default of payment of fine, to further undergo 3 months simple imprisonment. 11. Appellant is directed to furnish personal bond in the sum of Rs.50,000/- and a surety bond in the like amount in accordance with Section 437A of Cr.P.C. before the Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months. 12. Record of the learned Trial Court be sent forthwith.