Rajasthan High Court - Jaipur
Ram Singh vs State on 3 January, 2017
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B.Criminal Revision No. 1014 / 2001
Ram Singh S/o Shri Madho Singh, by Caste Gurjar, R/o
Loharkheda, Police Station Todabheem, Tehsil Hindaun City, Distt.
Karauli (Raj.).
----Accused-Petitioner
Versus
The State of Rajasthan.
----Respondent
_____________________________________________________
Counsel For Petitioner(s) :Mr.M.I.Khan
Counsel For Respondent(s):Mrs.Sonia Shandilya, Public Prosecutor
_____________________________________________________ HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Judgment / Order 03/01/2017 The appeal has arisen out of judgment dt. 23.11.2001 passed by Additional Sessions Judge, Hindaun City in regular Criminal Appeal No.12/1996 whereby appeal filed by the appellant Ram Singh was rejected and judgment dt. 6.11.1996 passed by Judicial Magistrate No.2 Hindaun City in regular Criminal Case No.114/1984 was upheld and whereby the accused Ram Singh was convicted for offence u/s326 IPC and sentenced to undergo two years simple imprisonment and a fine of Rs.500/- so also he was convicted for offence u/s.323 IPC and directed to ungergo three months simple imprisonment with fine of Rs.200/-in default of payment of fine the accused was ordered to further undergo one month's simple imprisonment for each default.
(2 of 5) [CRLR-1014/2001] In brief, facts of the case are that on 12.4.1984 Bhanwar Singh (PW-3) submitted a written report (Ex.P1) before police that on that day at about 12 noon when he was taking bath, suddenly Ram Singh, Madho Singh, Raghuveer Singh, Champa & Peetam, all appeared with a common object and started beating him with sticks, kicks and fists. Ram Singh bite his left ear. On commotion Padam Singh & Kamal Singh came there and intervened FIR No.59/1984 (Ex-P.3) was registered. After investigation, charge sheet against Ram Singh, Madho Singh & Raguveer Singh was filed before the Trial Court. Learned Trial Court charged Ram Singh for offence u/s.323 & 326/34 IPC and accused Raghuveer Singh and Madho Singh for the offence u/s 323 and 326/34 IPC. All the accused denied the charges and claimed trial. Prosecution examined seven witnesses and exhibited similar number of documents. The accused were examined u/s.313 Cr.P.C. Dr.Rajendra Prasad Rawat (DW-1) and Ram Singh (DW-2) the appellant, were examined as oral witnesses and exhibited injury report of Ram Singh (Ex-D1), FIR No.60/1984 (Ex-D2) registered by Ram Singh against the victims of the instant case and, Ex.D3 charge sheet filed in FIR No.60/1984. After hearing the parties learned trial court vide judgment dt.6.11.1996 convicted both Madho Singh and Raghuveer Singh for offences u/s 326/34 and 323 IPC and passed sentence against them along with the appellant Ram Singh as stated hereinabove.
On appeal learned Additional Sessions Judge, Hindaun City vide judgment dt.23.11.2001 acquitted Raghuveer Singh and upheld the conviction and sentence passed against present (3 of 5) [CRLR-1014/2001] appellant Ram Singh. Co-accused Madho Singh died during hearing of the appeal.
I have heard counsel of the rival parties and gone through the whole material available on record.
Statements of Bhanwar Singh (PW-3) against the present appellant have been corroborated by evidence of Padam (PW-1) and Nagraj (PW-2) and Kamal Singh (PW-4). All these witnesses have deposed that the appellant Ram Singh bite the left ear of Bhanwar Singh and also gave beating. Dr. Ramesh Chand Gupta (PW-5) has proved the injury report (Ex-P-4) whereby an incised would of 2" X ½" X ½" on external part of the left ear was found inflicted. As per this report this injury was caused by sharp weapon and is of grievous nature.
Witnesses of the prosecution have admitted in cross- examination that a cross FIR was registered by appellant Ram Singh against the complainant party of this case and the same is also pending trial. The documents exhibited in defence i.e. copy of FiR No.60/1984, injury report of Ram Singh and copy of charge sheet are further concretising the fact that a cross case was registered of the same incident. What happened in the trial of that cross case could not be brought on record. But it is established that there was a cross case and free fighting between the parties occurred. For better appreciation of the evidence and to reach at a finding as to which party was aggressor, it was necessary that trial of both the cases should have been conducted simultaneously and the matters should have been decided simultaneously. Be as it may, it is clear that the evidence adduced by prosecution in the (4 of 5) [CRLR-1014/2001] instant matter is sufficient to prove the charges framed against the appellant. However, the Apex Court has held in Shakeel Ahmed vs. State, Delhi reported in (2004) 10 SCC 103 that teeth of a human being cannot be considered as deadly weapon as per the description of deadly weapon enumerated u/s.326 IPC. Hence the offence cannot escalate to Section 326 IPC. It can best remain only at section 325 IPC. In that case the allegation against the accused was that he had bite the index finger and caused a grievous injury and as such he was charged with section 326 read with section 34 IPC.
Following the dictum of the apex court, in the instant matter, biting given by Ram Singh at the best can be construed as a crime committed not with a deadly weapon. Therefore conviction u/s 326 passed by learned Trial Court and upheld by the Appellate Court is required to be set aside and modified to that of Section 325 IPC.
Co-ordinate Benches of this Court in Munna Lal Vs. State of Rajasthan 2005 (4) RLW 3028 (Raj) and Gokul & Ors. Vs. State of Rajasthan 2009 (2) RCC 868 have considered the period undergone behind the bar by the accused persons during trial, appeal and revision and age of the accused, and held that after a long period passed on bail the accused is not required to send back to judicial custody to complete the sentences passed against them for offence u/s.325, 326 IPC. In Munna lal's case (supra), the accused was convicted u/s 326 IPC and had undergone 13 days in the custody, whereas in Gokul & Ors., the accused were convicted for offences u/s.326, 324, 323 and 147 IPC and had (5 of 5) [CRLR-1014/2001] been in the custody from six to eleven days during hearing of the trial appeal and revision.
In the instant matter, the appellant has remaind in judicial custody for about 30 days during the hearing in trial, appeal and revision. The matter is pertaining to year 1984, at that time, he was 24 years old. Now, he must be around 55 years age.
Considering all relevant aspects, it appears that ends of justice would meet if the sentences are also modified and the same may be converted into the period undergone in custody by the appellant.
In the result, the revision in partly allowed and conviction for offence u/s.326 IPC passed against the appellant and affirmed by Appellate Court is set aside and modified to that of offence punishable u/s.325 IPC. Conviction of offence u/s.323 IPC is upheld. For both the offences, the appellant is sentenced with imprisonment for a period which he has already undergone in police and judicial custody during hearing of trial, appeal and revision. He will also deposit fine of Rs.500/- for each offence and in default, he will have to undergo one month's simple imprisonment for each default.
The revision is disposed of accordingly.
(VIJAY KUMAR VYAS)J. Dheeraj/4