Rajasthan High Court - Jaipur
Pawan Kumar And Ors. vs State Of Rajasthan on 11 January, 1995
Equivalent citations: 1995CRILJ3950
Author: V.G. Palshikar
Bench: V.G. Palshikar
JUDGMENT B.R. Arora, J.
1. This appeal is directed against the judgment dated 22-10-94, passed by the Additional Sessions Judge, Ratangarh, by which the learned Additional Sessions Judge convicted the accused-appellants for the offences under Sections 307/34, 341 and 504, I.P.C. and sentenced each of them to undergo imprisonment for life for the offence under Section 307/34, I.P.C. one month's simple imprisonment and a fine of Rs. 500/ - and in default of payment of fine further to undergo one month's .simple imprisonment for the offence under Section 341, I.P.C. and six months' simple imprisonment and a fine of Rs. 500/-and in default of payment of fine further to undergo one month's simple imprisonment for the offence under Section 504, I.P.C.
2. Accused-appellants Pawan Kumar, Mukesh and Megh Raj were tried by the learned Additional Sessions Judge, Ratangarh, for the offences under Sections 307, 323, 341 and 504 read with Section 34, I.P.C. The case of the prosecution is that on 27-8-91, at about 11.30 p.m., P.W. 1 Chananiya - a worker working in a liquor shop was going to his house. In Mohalla Momasar Bas, accused Pawan Kumar, Mukesh, Megh Raj and one Vinod were sitting. They were taking liquor. On seeing Chananiya, accused Pawan Kumar called him, e went near them, where upon he was asked whether he would like to take liquor, whereupon Chananiya replied that he does not take liquor. On this, accused Pawan Kumar asked him why he was speaking loudly, whereupon Chananiya told that it was his house. Thereafter the accused gave beatings to him by fisty-blows on his stomach. Chananiya felt pain and went his house. Next day he went to the hospital and at the hospital, at 7.45 p.m., his statement was recorded. Thereafter he was referred to P.B.M. Hospital, Bikaner, where he was attended and operated by P.W. 11 Dr. Chandra Prakash. The prosecution, in support of its case, examined eleven witnesses. Out of these eleven witnesses, P.W. 1 Chananiya - the injured-, P.W. 2 Mangi Lal, P.W. 3 Todar Mai, P.W. 4 Budha Ram, P.W. 6 Bablu and P.W. 7 Shiv Ratan, are the eye- witnesses but P.W. 3 Todar Mal, P.W. 4 Budha Ram, P.W. 6 Bablu and P.W. 7 Shiv Ratan have not supported the prosecution case and were declared hostile. In the cross-examination they have denied, every part of their statements recorded under Section 161, Cr. P. C. and, therefore, their evidence is of no avail to the prosecution. The evidence of the eye- witnesses is sought to be corroborated by the evidence of three doctors, viz., P.W. 5 Dr. A.B.L. Mathur, P.W. 8 Dr. K. L. Mam the Radiologist and P.W. 11 Dr. Chandra Prakash, who attended Chananiya on the next day and opined that the injuries received by injured Chananiya were simple in nature. According to P.W. 5 Dr. A. B. L. Mathur, the Radiologist, no grievous injury was found on the person of injured Chananiya but P.W. 11 Dr. Chandra Prakash has stated that though there was no corresponding injury on the person of Chananiya but on opening the stomach he found the condition of Chananiya serious and if he would not have been attended and operated by him then the injuries would have proved fatal. P.W. 9 Raghuveer Singh was the Station House Officer, who signed the charge-sheet and P.W. 10 Mallu Ram was the A.S.I. who went the hospital, recorded the statement of Chananiya and on the basis of which the F.I.R. was registered. He, also, conducted the investigation in the case.
3. The prosecution case rests upon the statements of the two eye-witnesses, viz., P.W. 1 Chananiya - the injured - and P.W. 2 Mangi Lal. P.W. 1 Chananiya has stated that at about 13-14 months before, at about 11.00/11.30 p.m., he was going to his house. In Mohalla Momasar Bas of Sri Doongargarh, near a water-pond, at some distance of the house of Gopi, the accused were taking the liquor. Accused Pawan Kumar asked him to come to his side. He did not go there whereupon the accused surrounded him and forced him to take liquor. He denied to take the liquor whereupon the accused hurled abuses to him and started beating him. A lengthy cross-examination has been conducted with the witness but nothing could be elicited which could have shaken the veracity of the statement of this witness. The evidence of this injured witness stands corroborated by the evidence of P.W. 2 Mangi Lal, who is, also, an eye-witness and supported the prosecution case. From the evidence of these two eye-witnesses, which is supported by the medical evidence, the giving of the beatings by the accused persons to P.W. 1 Chananiya stands proved.
4. The next question, which requires consideration is: what offence is made-out against the accused- appellant. The learned Additional Sessions Judge has convicted and sentenced the accused-appellants for the offence under Section 307/34, I.P.C. along with the other offences. For proving the case against the accused for the offence under Section 307, I.P.C., the prosecution has to prove that the accused party, while giving beatings to the injured, had an intention to cause his death or they had the knowledge that the act done by them may result in the death of the injured and if there is an intention or knowledge coupled with some overt-act in the execution thereof then the accused can be held guilty for the offence under Section 307, I.P.C. But when the accused-appellants have given beatings only by fisty-blows on the stomach of the injured and no weapon was used by them in causing the injuries to the victim then the intention of murder cannot be gathered against the accused. It is true that it is not necessary to justify a conviction under Section 307, I.P.C. that the bodily injury, capable of causing the death of the injured, should have been inflicted but the intention or the knowledge to cause such bodily injury capable of causing the death, must be there. When the injuries were caused by fisty-blows on the stomach of the injured, such intention or knowledge of causing such injuries capable of causing the death of the victim cannot be inferred. The learned lower Court was, therefore, not justified in convicting and sentencing the accused-appellants for the offence under Section 307/34, I.P.C. In the facts and circumstances of the case the accused-appellants can be held guilty for committing the offence under Section 338/34, I.P.C. and their conviction and sentence for the offence under Section 307/34, I.P.C. deserve to be quashed and set aside.
5. The next question, which requires consideration is: whether the conviction of the accused-appellants for the offence under Section 341, I.P.C. can be maintained or not? There is no evidence on record to show that P.W. 1 Chananiya was wrongfully restrained by the accused-appellants and, therefore, the conviction and sentence of the accused-appellants for the offence under Section 341, I.P.C. are, also, not justified. The judgment, passed by the learned lower Court, convicting and sentencing the accused-appellants for the offence under Section 341, I.P.C., therefore, deserve to be quashed and set aside.
6. So far as offence under Section 504, I.P.C. is concerned, the ingredients of the offence under Section 504, I.P.C. are, also, not made out in the present case. There is no evidence on record to show that the accused-appellants intentionally insulted and thereby gave provocation to Chananiya which may have resulted in provocation to breach the public peace or to commit any other offence. The conviction of the accused-appellants for the offence under Section 504, I.P.C, also, deserve to be quashed and set aside.
7. The next question, which requires consideration in the present case, is: what sentence should be imposed against the accused-appellants. The appellants, at the relevant time, were less than twenty-one years of age. They are not previous convicts and are repenting over their act. The present trend of criminal law is reformative so that the young offenders may not be put in the company of hardened criminal and spoil their life. We, therefore, think it proper that instead of sentencing the accused-appellants at once to any imprisonment, they should be given the benefit of probation.
8. In the result, the appeal, filed by the accused-appellants is partly allowed. The conviction and sentence of the accused-appellants for the offences under Section 307/34,341 and 504, I .P.C., passed by the learned Additional Sessions Judge, Ratangarh, vide his judgment dated 22-10-94, are set aside and the appellants are acquitted of the aforesaid offences. However, the appellants are convicted of the offence under Section 338/34, I.P.C. but instead of sentencing them at once to any imprisonment it is directed that they should be immediately released from the jail on their furnishing personal bonds each in the amount of Rs. 5000/ - with two sureties of Rs. 2500/ - each that they will keep the peace and be of good behaviour for a period of one year from the date of furnishing the bonds.