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2024 DIGILAW 448 (RAJ)

Dewa Ram s/o Shri Vela Ram v. State of Rajasthan

2024-03-14

MANOJ KUMAR GARG

body2024
JUDGMENT : 1. Instant criminal appeal under Section 374(2) Cr.P.C. has been filed against the judgment and order dated 12.02.1993 passed by learned Additional District and Sessions Judge, Bali (hereinafter referred to as 'the trial Court') in Sessions Case No. 20/1990, whereby the trial Court has convicted and sentenced the appellants as under : S.No. Name of accused Offence Punishment 1. Dewa Ram 304-I IPC Seven years rigorous imprisonment and fine of Rs.2000/-, in default of fine to undergo one year R.I 323 IPC One Year rigorous imprisonment and fine of Rs. 1000/-, in default of fine, to undergo six months RI 2. Vela Ram 325/34 IPC Three years rigorous imprisonment and fine of Rs.1000/-, in default of fine to undergo six month R.I 323/34 IPC One Year rigorous imprisonment and fine of Rs. 500/-, in default of fine, to undergo three months R.I 2. Learned Public Prosecutor has submitted a report to the effect that appellant no.2 Vela Ram has expired. Therefore, the present criminal appeal qua the appellant no.2 stands abeted. 3. The concise facts of the case are that a First Information Report was registered in respect of incident alleged to have taken place on 20.03.1990 in which Smt. Khimi received injuries with Kudal as a result of which she died and Pakka Ram and Jatna also received simple injuries. A FIR was registered about commission of offences punishable under Sections 307, 324, 323/34 IPC and later on, offence under Section 302 IPC was added. 4. After due investigation, police filed charge sheet against accused-persons for offence under Section 302, 324, 323/34 IPC. Thereafter, separate charges were framed against the accused. The appellant denied the charges and claimed trial. 5. After scrutiny of the material on record and evidence produced by the prosecution as well as statement of accused under Section 313 Cr.P.C., learned trial Court vide judgment dated 12.02.1993 convicted and sentenced the appellant as stated hereinabove. 6. Learned counsel for the accused-appellant contended that there was no intention whatsoever to cause death of deceased Khimi. The deceased had obstructed the way of appellant and therefore, on the spur of the moment, the appellant gave a single blow which proved fatal. 6. Learned counsel for the accused-appellant contended that there was no intention whatsoever to cause death of deceased Khimi. The deceased had obstructed the way of appellant and therefore, on the spur of the moment, the appellant gave a single blow which proved fatal. Thus, there was no intention or knowledge on behalf of appellant to cause death of deceased, therefore, the offence does not travel beyond 325 IPC or at the most offence under Section 304 Part II IPC. Further, the incident relates back to year 1990 and the appellant who is now 65 years of age has remained in custody for a period of five months and 13 days. If this Court does not deem it a case fit for acquittal, then while converting the conviction of appellant from offence under Section 304 Part I IPC to Section 304 Part II IPC and without making any interference on merits/conviction for offence under Section 323 IPC, the sentence awarded to the present appellant may be substituted with the period of sentence already undergone by him. Learned counsel placed reliance upon the judgment of Hon’ble Apex Court in the case of Om Prakash Vs. State of Haryana reported in 1980 SCC 91 , Manibhai Vithalbhai Machhi Vs. State of Gujarat reported in 1988 (Supp) SCC 791, Sujan Singh & Ors Vs. State of Haryana reported in 1992 Supp (3) SCC 69, Mavila Thamban Nambiar Vs. State of kerala reported in Manu/SC/ 0164/1997 and Mohd. Rafiq Vs. State of Madhya Pradesh reported in MANU/SC/0651/2021. 7. Learned Public Prosecutor appearing on behalf of the respondent-State vehemently opposed the prayer made by learned counsel for the accused-appellant and submitted that there is no reason to disbelieve the prosecution evidence and learned Trial Court has rightly convicted and sentenced the accused-appellants. He prayed that the impugned judgment and order passed by the Trial Court may be sustained and sentence awarded to the accused-appellant by the learned Trial Court be maintained by this Court. 8. I have considered the submissions of the learned counsel for the accused-appellant as well as learned Public Prosecutor and also gone through the entire record. 9. I have perused the statements of prosecution witnesses and find that the injured witnesses as well as other witnesses specifically state that the appellant Dewa Ram had inflicted head injury to the deceased. 8. I have considered the submissions of the learned counsel for the accused-appellant as well as learned Public Prosecutor and also gone through the entire record. 9. I have perused the statements of prosecution witnesses and find that the injured witnesses as well as other witnesses specifically state that the appellant Dewa Ram had inflicted head injury to the deceased. According to the postmortem report as well as statement of PW/21 Dr. Bheemdan, the deceased received only single injury on his dead which was the cause of death. 10. The Hon'ble Apex Court has held in the case of Chamru Budhwa vs. State of Madhya Pradesh, reported in AIR 1954 SC 652 that 'the appellant dealt a blow on the head of the deceased with a lathi and which proved fatal. The injury was medically opined sufficient in the ordinary course to cause death. Conviction under Section 302, IPC followed.' The Hon'ble Apex Court in the aforesaid case has observed as under: "5. It now remains to consider whether the offence which he committed falls within the first part or the second part of Section 304 of the Indian Penal Code. When the fatal injury was inflicted by the appellant on the head of the deceased by only one blow given in the manner alleged by the prosecution it could as well be that the act by which death was caused was not done with the intention of causing death or of causing such bodily injury as is likely to cause death. The act appears to have been done with the knowledge that it was likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death within the meaning of Part II of Section 304 of the Indian Penal Code. 6. We accordingly allow the appeal to this extent that the conviction of the appellant under Section 302 of the Indian Penal Code and the sentence of transportation for life awarded to him will be set aside, but the appellant will be convicted of having committed the offence under Section 304 Part II of the Indian Penal Code and will be sentenced to seven years' rigorous imprisonment." 11. In the case of Gurmukh Singh vs. State of Haryana reported in (2009) 15 SCC 635 , the Hon'ble Supreme Court has held that "the deceased died three days later after an assault on the head with a lathi opined to be sufficient in the ordinary course of nature to cause death. Holding that the assault was made on the spur of the moment without premeditation the conviction was altered from one under Section 302 to Section 304 Part II and a sentence of seven years was handed. 12. Similarly in Mohd. Shakeel vs. State of A.P., reported in (2007) 3 SCC 119 , the appellant had caused only one injury and had suffered injury himself also. Altering the conviction from under Section 302 IPC to 304 Part II, the appellant was sentenced to the period undergone since 1999." 13. Hon'ble Supreme Court in the case of Shankar @ Kalu V. State of Madhya Pradesh reported in 1979 SCC (Criminal) 632 has held that 'where occurrence took place suddenly and the accused caused injury with a dagger on the neck, altered the conviction from Section 302 IPC to Part II of Section 304 of IPC'. 14. Accordingly, this Court is of the opinion that the accused appellant is liable to be convicted under Section 304 Part II IPC instead of 304 Part I IPC. So far as the sentence part is concerned, the appellant has remained behind the bars for more than five months time so also undergone mental as well as physical agony of protracted trial for last thirty four years, leniency can be shown to some extent. 15. Hon'ble Apex Court in Surinder Singh Vs. State (Union Territory of Chandigarh) : 2022 (1) BLJ 366 wherein it was observed as under:- "Appellant-Surinder Singh has laid challenge to the judgment dated 19th May 2010 of the High Court of Punjab & Haryana, whereby, the order of his conviction and sentence dated 25th July 2006 passed by Learned Additional Sessions Judge, Chandigarh was confirmed. The Appellant has been convicted Under Section 307 of the Indian Penal Code, 1860 (hereinafter 'IPC') and Section 27 of the Arms Act, 1959 (hereinafter, 'Arms Act'), and sentenced to rigorous imprisonment of 3 years for both the offences, with a direction that sentences will run concurrently. The Appellant has been convicted Under Section 307 of the Indian Penal Code, 1860 (hereinafter 'IPC') and Section 27 of the Arms Act, 1959 (hereinafter, 'Arms Act'), and sentenced to rigorous imprisonment of 3 years for both the offences, with a direction that sentences will run concurrently. We are thus of the considered opinion that whilst motive is infallibly a crucial factor, and is a substantial aid for evincing the commission of an offence but the absence thereof is, however, not such a quintessential component which can be construed as fatal to the case of the prosecution, especially when all other factors point towards the guilt of the Accused and testaments of eye-witnesses to the occurrence of a malfeasance are on record. The Appellant was admittedly a police official at the time of the incidence and the arms and ammunitions used for the commission of the offence, were placed in his possession under the sanction accorded by the Competent Authority. The Appellant being in authorised possession of the weapon, cannot be said to have used an unlicensed weapon, as prohibited Under Section 5 of the Arms Act. It appears that the Trial Court was swayed by irrelevant considerations such as illegal use of the weapon, and lost track of the objective of the Statute, which has been enacted to provide a licensing/regulatory regime, to enable law-abiding citizens to carry arms, and also to prohibit the possession, acquisition, manufacture, etc. of certain categories of firearms, unless authorized by the Central Government. In other words, illegal use of a licensed or sanctioned weapon per se does not constitute an offence Under Section 27, without proving the misdemeanour Under Section 5 or 7 of the Arms Act. At best, it could be a 'misconduct' under the service rules, the determination of which was not the subject of the trial. 31. In light of the afore-stated discussion, we find that the order of the Trial Court in convicting the Appellant or of the High Court in maintaining such conviction Under Section 27 of the Arms Act, is unwarranted and unjust. Accordingly, the Appellant is acquitted of the charge Under Section 27 of the Arms Act. ….. Adverting to the facts of the case, in hand, we are of the considered view that at this stage, the sentence awarded to the Appellant is no longer in degree to the crime which he has committed. Accordingly, the Appellant is acquitted of the charge Under Section 27 of the Arms Act. ….. Adverting to the facts of the case, in hand, we are of the considered view that at this stage, the sentence awarded to the Appellant is no longer in degree to the crime which he has committed. Remitting the Appellant to the rigors of imprisonment at this juncture of his life would not serve the ends of justice due to following mitigating factors: a. No motive or element of planning has been proved by the Prosecution in the present case which indicates the possibility that the offense could have been committed on impulse by the Appellant. Hence, the culpability of the offender in such situations is less than that which is ascribed in premeditated offenses as the commission of planned illegal acts denotes an attack on societal values with greater commitment and continuity in comparison to spontaneous illegal acts. b. Even though the factum of injury may not have a direct bearing on a conviction Under Section 307 Indian Penal Code, the same may be considered by a Court at the time of sentencing. No doubt, the offence committed by the Appellant squarely falls within the four corners of Section 307 Indian Penal Code, but fortunately neither the complainant nor any other person was hurt by the untoward act of the Appellant. c. Appellant has already undergone a sentence of 3 months and 19 days. Additionally, despite the occurrence taking place in 1999, there is no indication that Appellant has been involved in any untoward activity before or after the incident. This highlights the Appellant's good character and indicates that the incident can be interpreted as an isolated lapse of judgment. Further, the Appellant's clean post-incident behaviour suggests that he is rational individual who is capable of responding to the social censure associated with the offence. Hence, the passage of a long time period coupled with a clean record, both before and after the incident is definitely a factor that calls for mitigation of sentence. d. Barring this particular incident wherein he was under the influence of alcohol, the Appellant had an unblemished service record with sixteen good citations in his favour. This indicates that he was a valuable member of society than the present criminal incident might lead one to assume. d. Barring this particular incident wherein he was under the influence of alcohol, the Appellant had an unblemished service record with sixteen good citations in his favour. This indicates that he was a valuable member of society than the present criminal incident might lead one to assume. This is not to say that courts should draw up a social balance sheet when sentencing, but only to take these positive social contributions as a factor for mitigation of sentence. e. Lastly, it is to be noted that the Appellant was suspended in the year 1999 and has also been subsequently dismissed from service in the year 2007. Hence, this should also be considered as a reasonable factor for mitigation because the dismissal and the consequent loss of social security benefits such as pension, also construes as a form of social sanction." 16. Hon’ble Apex Court in the case of ‘Haripada Das Vs. State of W.B. : (1998) 9 SCC 678 has observed as under:- "considering the fact that the respondent had already undergone detention for some period and the case is pending for a pretty long time for which he had suffered both financial hardship and mental agony and also considering the fact that he had been released on bail as far back as on 17-1-1986, we feel that the ends of justice will be met in the facts of the case if the sentence is reduced to the period already undergone" 17. Accordingly, the appeal is partly allowed. While converting the appellant No.1 Dewa Ram’s conviction for offence under Section 304-I to 304 Part II and while maintaining the conviction for offence under Section 323 IPC, the sentence awarded to him is reduced to the period already undergone by him. The fine imposed by the trial court is not interfered with. Three month’s time is granted to deposit the fine before the trial court, failing which the appellant shall undergo one month simple imprisonment. Appellant Dewa Ram is on bail. His bail bonds shall stands discharged on deposition of fine. The record of the trial court be sent back forthwith.