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2024 DIGILAW 1611 (RAJ)

Banwari Lal S/o Ramswaroop v. State of Rajasthan

2024-11-26

PANKAJ BHANDARI, SHUBHA MEHTA

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JUDGMENT : Pankaj Bhandari, J. 1. Accused-Appellants Banwarilal and Ramswaroop have preferred this appeal aggrieved by Judgment and Order dated 12.10.1990 passed by Addl. Sessions Judge No.1, Alwar in Sessions Case No.30/88, whereby accused-appellant Banwarli Lal has been convicted for offence under Section 302 IPC and has been sentenced to undergo imprisonment for life alongwith fine of Rs.2500/- and in non-default of fine, to further undergo rigorous imprisonment for six months and accused-appellant Ramswaroop has been convicted for offence under Section 323 IPC and sentenced to pay fine of Rs.500/- and in non-default of fine, to further undergo three months simple imprisonment. During pendency of the appeal, accused Ramswaroop has expired and now the appeal survives qua appellant- Banwarilal only. 2. Succinctly stated the facts of the case are that on 05.02.1988, Savitri Devi (mother of informant) and Laxmi Devi (wife of accused Banwarilal) had a quarrel pertaining to cleaning of nali. A written report was filed by PW-1 (Phool Chand, S/o deceased Kedarnath) on 06.02.1988 at 04:30 pm after a delay of 27 hours of the incident. The allegation in the FIR was that Savitri Devi was assaulted inside the house of appellant- Banwarilal and when this information was given by PW-7 (Khemchand), the family members went to the place of occurrence, where all the accused i.e. Ramswaroop, Banwarilal, Radhesyam, Shyoprasad, Satish and Laxmi Devi were assaulting Savitri Devi and when Kedarnath tried to help her, all accused started beating Kedarnath jointly. The informant and his younger brother were also beaten up by the accused. During the treatment, Kedarnath expired and the police registered case under Sections 147, 148, 149, 302, 452, 323 of IPC against Ramswaroop, Banwarilal, Radhesyam, Shyoprasad, Satish and Laxmi Devi and the charge-sheet was filed against all six accused and the Trial Court framed charges against all six accused. As many as 14 witnesses were examined on behalf of the prosecution. In defence, three witnesses were examined. Learned Trial Court convicted Ramswaroop for offence under Section 323 IPC, Banwarilal for offence under Section 302 IPC and Laxmi for offence under Section 323 IPC. Aggrieved by which, Banwarilal and Ramswaroop have preferred this appeal. Laxmi Devi was given benefit of probation and she did not prefer any appeal. Ramswaroop has expired and the appeal survives qua Banwarilal only. 3. Aggrieved by which, Banwarilal and Ramswaroop have preferred this appeal. Laxmi Devi was given benefit of probation and she did not prefer any appeal. Ramswaroop has expired and the appeal survives qua Banwarilal only. 3. It is contended by counsel for the accused-appellant Banwarilal that injured eye witnesses have stated untrue statement before the Court as far as implications of co-accused Radhesyam, Satish, Shyoram and Laxmi Devi with regard to the murder of deceased Kedarnath and in these circumstances when witnesses are found unreliable qua other accused persons, they should not have been believed by the Court qua present appellant Banwarilal. It is also contended that FIR was lodged after a lapse of 27 hours. In the FIR, no overt act is assigned to Banwarilal. There are general allegations that all the accused were beating the deceased. It is contended that no independent eye witness has been examined. All the witnesses are related to the deceased. It is also contended that Ramswaroop, father of appellant- Banwarilal received three injuries including a lacerated wound on scalp which was caused by some sharp weapon. Prosecution has miserably failed to explain the injuries received by Ramswaroop. It is also contended that as per the Court statement of PW-1 (Khemchand), all six accused persons assaulted the deceased and no specific overt act has been assigned by PW-1 (Khemchand) against accused Banwarilal. It is also contended that the eye witnesses have stated in the Court that accused Banwarilal gave two lathi blows to the deceased on the head, but as per statement of PW-5 (Dr. B.L. Ujjania), both head injuries were caused by two different weapons. Thus, the medical evidence does not corroborate the oral testimony of eye witnesses. 4. It is also contended that PW-2 (Savitri Devi) in her cross-examination has specifically admitted that reason of quarrel was trivial issue of cleaning the drain and there was no previous enmity between the parties. It is contended that the incident happened on the spur of the moment where co-accused-Ramswaroop also received three injuries. Thus, it is a case of free fight and hence, the offence under Section 302 IPC is not made out against accused appellant- Banwarilal. It is contended that the incident happened on the spur of the moment where co-accused-Ramswaroop also received three injuries. Thus, it is a case of free fight and hence, the offence under Section 302 IPC is not made out against accused appellant- Banwarilal. It is contended that the Trial Court has wrongly denied the benefit of private defence to the accused as when father of the appellant received a sharp injury on the head, the appellant had all the rights of private defence. It is contended that even if the case of right of private defence is not considered by the Court, then also, the appellant was armed with a lathi and the lathi was not found to contain any blood stains. Only one blow was caused by him to the deceased which as per the doctor was a simple one. The deceased had a fall or he sustained injuries due to some other reasons as the size of injury No.2 is 5cm/5cm which could not have been caused by a lathi. Thus, case of the appellant would not travel beyond Section 304 Part II of IPC. It is contended that appellant has already undergone 13 months actual judicial custody. He is aged 70 years of age and the incident is of year 1988. A period of 36 years has lapsed since the date of incident which took place on a trivial issue of cleaning the nali between two females. Counsel for the appellant has prayed that the Judgment and Order of the Court below be set aside. 6. Learned Addl. Government Advocate appearing for the State has opposed the appeal. It is contended that the appellant alongwith other co-accused attacked the deceased and gave blows to the deceased. There is a specific evidence that the appellant gave blow with lathi on the head of the deceased, which resulted into the fracture of the parietal bone and was the cause of death. 7. We have considered the contentions and have carefully perused the evidence as well as the record of the case. 8. It is an admitted case that the occurrence took place at a trivial issue of cleaning the nali between Savitri and wife of the appellant. The dispute was resolved but it further aggravated and injuries were caused to father of the appellant- Ramswaroop including sharp injury on the head. 8. It is an admitted case that the occurrence took place at a trivial issue of cleaning the nali between Savitri and wife of the appellant. The dispute was resolved but it further aggravated and injuries were caused to father of the appellant- Ramswaroop including sharp injury on the head. Phoolchand who is son of deceased- Kedarnath, in the FIR lodged by him, has not assigned any overt act to the appellant and there was general allegation that all the accused gave blow to the deceased. Appellant has been singled out by the Sessions Court, as in evidence adduced before the Court, Savitri Devi and Khemchand deposed that the appellant gave two blows of lathi on the head of the deceased. This evidence adduced on behalf of the prosecution is not tallying with the injury report and there is only one injury which can be said to be caused by a lathi. The other injury is of the size of 5cm by 5 cm which could not be caused by a lathi. Even Dr. B.L. Ujjania (PW-5) has deposed that the two injuries on the head were caused by different weapons and that injury No.2 could be caused by a fall. Thus, the prosecution has failed to establish that two blows were caused by the accused-appellant. 9. The delay in lodging of FIR by son of the deceased which is 27 hours after the incident coupled with the fact that he has shown his presence at the place of occurrence and he has not assigned any specific injury to the appellant and there was general allegations against six persons of causing injuries to the deceased. Court is of the considered view that the subsequent improvement in the story cannot be made basis for conviction for offence under Section 302 IPC., more particularly, when the dispute took place at the spur of the moment and was on a trivial issue of cleaning of nali. This Court cannot lose sight of the fact that father of the appellant was also assaulted and he has received three injuries including a sharp injury on the head. 10. From perusal of the Ex.P/2, it is further revealed that the FIR was registered on 06.02.1988 at 04:30 pm, but the same was received by the Magistrate on 09.02.1988 at 12:45 pm. A remark to this effect has been made by the Officer in Ex.P/2. 10. From perusal of the Ex.P/2, it is further revealed that the FIR was registered on 06.02.1988 at 04:30 pm, but the same was received by the Magistrate on 09.02.1988 at 12:45 pm. A remark to this effect has been made by the Officer in Ex.P/2. The delay in sending the FIR to the concerned Magistrate also creates doubt about the lodging of the FIR and the prosecution story cannot be believed in its entirety. Further, the statement of witnesses were recorded after a delay of more than two days. 11. It was argued by counsel for the appellant that the appellant had exercised his right of private defence. His father was attacked and in private defence, if he has caused blow by lathi, he is entitled to be given benefit of right of private defence. We are unable to accept the said argument for the very reason that in the explanation recorded under Section 313 Cr.P.C., appellant has stated that he was not present at the place of occurrence. He has not set up a case that he caused blow exercising right of private defence. 12. We are of the considered view that the incident took place on the spur of the moment on a trivial issue of cleaning of nali. Appellant only caused one single lathi blow to the deceased. Thus, the case would not travel beyond Section 304 Part II of IPC. Appellant has remained in custody for a period of 13 months. The incident is of year 1988, a period of 36 years has lapsed and the appellant is now aged 70 years. Hence, while setting aside the conviction for offence under Section 302, we deem it proper to convict the accused under Section 304 Part II of IPC and sentence him to the period already undergone. The judgment of conviction and order of sentence dated 12.10.1990 of the trial Court is modified. 13. The appeal is accordingly, partly allowed. Accused-Banwari Lal is on bail. The bail bonds earlier submitted by Banwari Lal are hereby cancelled. 14. Pending applications, if any, stand disposed. 15. The judgment of conviction and order of sentence dated 12.10.1990 of the trial Court is modified. 13. The appeal is accordingly, partly allowed. Accused-Banwari Lal is on bail. The bail bonds earlier submitted by Banwari Lal are hereby cancelled. 14. Pending applications, if any, stand disposed. 15. 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 481 of BNSS 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.