Rajasthan High Court - Jaipur
Prasad S/O Brijlal vs State Of Rajasthan on 3 January, 2020
Bench: Sabina, Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Criminal Revision Petition No. 5/1989
Petitioner/Complainant
Prasad son of Brijilal by caste Brahmin, resident of Sitaram-ka-
Nagla, Police Station Kathoomar, Tehsil Laxmangarh, Distt. Alwar
Versus
Non-Petitioners
1. State of Rajasthan
.. Non-petitioner
2. Babulal s/o Ramswaroop
3. Ram Singh s/o Ramswaroop
4. Prakash s/o Ram Singh
5. Hardayal s/o Ram Singh
6. Dau Dayal s/o Babulal
7. Ram Dayal s/o Babulal
8. Birju s/o Ram Swaroop
9. Thakurlal s/o Ramswaroop
all by caste Brahmin, residents of Nagla Sitaram ka, Police
Station Kathoomar, Tehsil Laxmangarh, District Alwar.
----Accused-Nonpetitioners
Connected With
D. B. Criminal Appeal No. 451/1988
1. Babu Lal son of Shri Ram Swaroop,
2. Ram Singh son of Shri Ram Swaroop,
3. Prakash son of Shri Ram Singh,
4. Har Dayal son of Shri Ram Singh,
5. Dau Dayal son of Shri Babu Lal,
6. Ram Dayal son of Shri Babu Lal,
7. Birju son of Shri Ram Swaroop,
8. Thakur Lal son of Shri Ram Swaroop
All by caste Brahman, Residents of Nagla Sitaram ka, Police
Station Kathoomar, District Alwar.
----Accused-appellants.
Versus
The State of Rajasthan
----Non-appellant
(Downloaded on 08/01/2020 at 09:09:44 PM)
(2 of 9) [CRLR-5/1989]
For Petitioner : Mr. V.P. Vishnoi with Mr. Amar Kumar.
For Appellants : Mr. Mohit Balwada with Mr. Hemant
Dagur.
For Respondent : Mr. N.S. Guarjar, Public Prosecutor.
HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment 03/01/2020 Vide this judgment, abovementioned criminal revision petition and criminal appeal would be disposed of, as they have arisen out of common judgment/order dated 08.12.1988 passed by the Court of Additional Sessions Judge No. 1, Alwar (hereinafter referred to as 'the Trial Court').
Prosecution story, in brief, is that on 25.03.1986 at about 6.00 P.M., complainant Prasad and Ram Charan were present in the open area of the house of Ram Charan. Ram Dayal and Damo were also present there. In the meantime, wife of Babu Lal started abusing wives of the complainant and Ram Charan. Complainant enquired from the wife of Babu Lal as to why she was abusing the ladies. Then, Babu Lal, Ram Singh, Birju, Thakur Lal, Prabhat, Ram Swaroop, Dau Dayal, Ram Dayal, Har Dayal and Prakash armed with sticks and farsis came there and entered the open area of the house of Ram Charan. Babu Lal and Ram Singh raised lalkara that the complainant party should be killed. Thakur Lal gave a farsi blow on the head of the complainant from the sharp side and gave another farsi blow on his feet. Babu Lal and Ram Singh gave stick blows to complainant Prasad on different parts of his body. Dau Dayal, Birju and Ram (Downloaded on 08/01/2020 at 09:09:44 PM) (3 of 9) [CRLR-5/1989] Dayal gave farsi blows from sharp side on the head of Ram Charan. As a result, Ram Charan fell down and thereafter, he was inflicted injuries with sticks. Damo and Ram Dayal also inflicted injuries with sticks. Ramesh, Jashoda and Ramdei came to rescue Ram Charan and they were also inflicted injuries by the accused.
After completion of investigation and necessary formalities, challan was presented against Babu Lal, Ram Singh, Prakash, Har Dayal, Dau Dayal, Ram Dayal, Birju and Thakur Lal. Charges were framed against the accused-appellants under Sections 147/148, 302/149, 323/149 and 448 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC'). Accused-appellants did not plead guilty to the charges framed against them and claimed trial. In order to prove its case, prosecution examined 14 witnesses. Accused-appellants were examined under Section 313 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.) and prayed that they were innocent and had been falsely involved in the case. Accused Dau Dayal appeared in the witness box as D.W.1.
Trial Court vide impugned judgment/order dated 08.12.1988 ordered conviction and sentence of the accused- appellants under Sections 148, 304 Part II/149, 323/149 and 448 IPC. Hence, the accused-appellants have filed appeal challenging their conviction and sentence and the complainant has filed revision petition praying that the accused be convicted and sentenced qua offence punishable under Section 302 IPC.
Learned counsel for the accused-appellants has submitted that the Trial Court has erred in ordering conviction of the accused-appellants under Section 148 IPC. There was land (Downloaded on 08/01/2020 at 09:09:44 PM) (4 of 9) [CRLR-5/1989] dispute between the parties. In-fact, it was a case of version and cross version. Version put forth by the accused side had been wrongly disbelieved by the investigating agency. Although, it was the case of the complainant party that accused-appellants had inflicted injuries to the deceased as well as the injured witnesses with farsi but as per the medical evidence, the deceased as well as the injured witnesses had suffered injuries with blunt weapon. In- fact, all the accused-appellants except Ram Singh had also suffered injuries in the incident. Accused-appellant Babu Lal had suffered one grievous injury. Accused Babu Lal and Ram Dayal had suffered injuries with sharp edged weapon also. Deceased Ram Charan had suffered only one injury with blunt weapon.
Learned State counsel as well as learned counsel for the complainant-petitioner have submitted that the Trial Court has erred in ordering conviction of the accused under Section 304 Part II/149 IPC. In-fact, all the accused were liable to be convicted and sentenced qua offence punishable under Section 302/149 IPC. All the accused had entered the house of the deceased armed with deadly weapons with intention to commit the murder.
Complainant, Prasad while appearing in the witness box as P.W.1 has deposed as per the contents of the FIR. Injured witnesses P.W.3 Ramesh, P.W.4 Ramdei, P.W.5 Jashoda, P.W.6 Ram Babu, P.W.8 Ram Dayal and P.W.9 Damo have corroborated statement of the complainant with regard to the manner of incident.
Exhibit P-14 is the medico legal examination report of the deceased Ram Charan. Perusal of the same reveals that the deceased had suffered following injury with blunt weapon: (Downloaded on 08/01/2020 at 09:09:44 PM)
(5 of 9) [CRLR-5/1989] "1. Lacerated wound, 6 cm x 0.5 cm Bone deep, on the left side of the scalp, obliquely placed 17 cm above the bridge of the Nose and 11 cm above the tip of left ear, Blunt."
Exhibit P-15 is the post mortem examination report of deceased Ram Charan and perusal of the same reveals that the cause of death of the deceased was due to head injury which was ante mortem in nature. Exhibit P-14 and Exhibit P-15 have been proved by P.W.11 Dr. B.S. Sethi. P.W.11 has also proved medico legal examination reports of injured Ramesh, Damo, Ramdei, Jashoda, Ram Babu, Ram Dayal, and complainant Prasad. Said medico legal examination reports have been exhibited as Exhibit P-7 to Exhibit P-13.
As per the medical evidence on record, all the injured had suffered simple injuries with blunt weapon.
P.W.11 also proved medico legal examination reports of the accused-appellants except Ram Singh as Exhibit D-6 to Exhibit D-12. Perusal of the medico legal examination reports of the accused-appellants reveal that accused-appellant Babu Lal had suffered 10 injuries. Out of the said injuries, 2 were with sharp edged weapon. Accused Babu Lal had suffered one grievous injury on his finger, whereas, other injuries were simple in nature. Accused-appellant Prakash had suffered three simple injuries with blunt weapon. Accused-appellant Har Dayal had suffered three simple injuries with blunt weapon. Accused-appellant Dau Dayal had suffered 13 simple injuries with blunt weapon. Accused- appellant Ram Dayal had suffered three injuries. Out of the said injuries, one injury was with sharp edged weapon whereas two injuries were with blunt weapon. All the injuries were simple in (Downloaded on 08/01/2020 at 09:09:44 PM) (6 of 9) [CRLR-5/1989] nature. Accused-appellant Birju had suffered two simple injuries with blunt weapon. Accused-appellant Thakur Lal had suffered four simple injuries with blunt weapon.
From the accused side, Somati had also suffered one simple injury with blunt weapon.
Exhibit P-3 is the site plan proved on record. A perusal of the site plan reveals that the open area of the house of Ram Charan, where the incident had allegedly taken place, is adjoining the passage. There is no boundary wall in between the passage and the open area. House of Babu Lal is in the same area where the houses of the complainant as well as the deceased have been shown in the site plan.
Section 300 IPC reads as under:
"300. Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.-xxxxxxxxxxxx Exception 2.-xxxxxxxxxxxx Exception 3.-xxxxxxxxxxxx Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Exception 5.-xxxxxxxxxxxx"
(Downloaded on 08/01/2020 at 09:09:44 PM)
(7 of 9) [CRLR-5/1989] Both the sides have suffered injuries in the incident. The said fact is evident from the medical evidence available on record. All the accused-appellant, except Ram Singh, had suffered injuries in the incident. Accused Babu Lal had suffered 10 injuries, whereas, accused Dau Dayal had suffered 13 injuries. Some of the accused-appellants namely Babu Lal and Ram Dayal had also suffered injuries with sharp edged weapon. So far as complainant party is concerned, all the injured and the deceased have suffered injuries with blunt weapon. From the complainant side, all the injured have suffered simple injuries. As per the prosecution version, the incident had occurred in the open area of the house of the deceased Ram Charan, whereas, the case of the accused party as set up in the cross version was that the incident had occurred in the passage.
After considering the facts and circumstances of the present case, we are of the opinion that it was a case of sudden and free fight where the accused as well as the complainant party inflicted injuries to each other. Hence, each of the accused was responsible for his individual act. The Trial Court has, therefore, erred in holding that accused-appellants were guilty of offence punishable under Section 148 IPC. Hence, the accused-appellants are liable to be acquitted of the charge framed against them under Section 148 IPC.
The next question that requires consideration is as to who was responsible for causing death of Ram Charan. The complainant as well as the injured witnesses have deposed that first of all accused Dau Dayal had given a farsi blow on the head of Ram Charan and thereafter blows were given on the head of Ram (Downloaded on 08/01/2020 at 09:09:44 PM) (8 of 9) [CRLR-5/1989] Charan by Birju and Ram Dayal with farsi. Thus, as per the eye witnesses, the first blow on the head of Ram Charan had been given by Dau Dayal. As per the medical evidence on record, Ram Charan had suffered only one injury on his head with a blunt weapon. Although, the witnesses have deposed that Dau Dayal had given a farsi blow on the head of Ram Charan from the sharp side but it appears that the blow must have been given on the head of Ram Charan by accused Dau Dayal from the blunt side. This shows that accused Dau Dayal had no intention to commit the murder of Ram Charan but had the knowledge that the injury inflicted by him on the head could cause his death. Since, there was only one injury on the head of Ram Charan from the blunt side of farsi, learned Trial Court rightly came to the conclusion that it was not a case falling under Section 302 IPC and rightly concluded that the case would fall in the ambit of Section 304 Part II IPC. Hence, accused-appellant Dau Dayal is held guilty of offence punishable under Section 304 Part II IPC, whereas, all the accused-appellants are held guilty of offence punishable under Section 323 IPC. However, all the accused were liable to be acquitted of the charges farmed against them under Section 448 IPC as the possibility that the occurrence took place in the passage cannot be ruled out.
Accordingly, the accused-appellants are acquitted of the charge framed against them under Section 148 IPC. Conviction and sentence of accused-appellant Dau Dayal under Sections 304 Part II IPC is upheld, whereas, conviction and sentence of other accused-appellants under Section 304 Part II/149 IPC is set aside. Conviction of all the accused-appellants under Section 323 IPC is (Downloaded on 08/01/2020 at 09:09:44 PM) (9 of 9) [CRLR-5/1989] upheld, however, their sentence is reduced to the period already undergone by them under Section 323 IPC. All the accused are acquitted of the charge framed against them under Section 448 IPC.
D. B. Criminal Appeal No. 451/1988 stands disposed of accordingly.
Consequently, D. B. Criminal Revision Petition No. 5/1989 stands dismissed.
(NARENDRA SINGH DHADDHA),J (SABINA),J
MANOJ NARWANI /2-3
(Downloaded on 08/01/2020 at 09:09:44 PM)
Powered by TCPDF (www.tcpdf.org)