Rajasthan High Court - Jodhpur
Dhula Ram vs State on 21 January, 2021
Bench: Sandeep Mehta, Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 114/2019
1. Dhula Ram S/o Roopa Gameti, Aged About 55 Years,
Udaipur
2. Vardaram S/o Samat Ji Gameti, Aged About 52 Years,
Udaipur
3. Banshi Lal S/o Dhula Ji, Aged About 26 Years, All By
Caste Gameti, Residents Of Gundali Falla Laka Kolra,
Sayra Police Station, District Udaipur (Lodged In Central
Jail Udaipur)
----Appellants
Versus
State, Through PP
----Respondent
For Appellant(s) : Mr. J.V.S. Deora
For Respondent(s) : Mr. Farzand Ali GA-cum-AAG
Mr. Anil Joshi, PP
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA
JUDGMENT
DATE OF JUDGMENT 21/01/2021
BY THE COURT:
The instant appeal has been preferred by appellants Dhula Ram, Varda Ram and Banshi Lal under Section 374 (2) Cr.P.C. being aggrieved of the impugned judgment dated 16.03.2019 passed by the learned Additional Sessions Judge No.2, Udaipur in Sessions Case No.39/2017 (387/2015) whereby, they were convicted for the offence under Section 302/34 IPC and sentenced to life imprisonment with a fine of Rs.5,000/- each and in default of payment of fine further to undergo one year's simple imprisonment.
Facts in brief:-
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(2 of 10) [CRLAD-114/2019] Raju Ram Gameti (PW-4) submitted a written report to the SHO, Police Station Sayra, District Udaipur on 27.08.2015 at 1:30 a.m. alleging inter alia that on the previous night at about 9:30 p.m., he along with his mother Smt. Panki Bai, wife Smt.Suarti Bai and sister Vasani were sitting at their house, waiting for his father Shri Shanker Lal, who was scheduled to return home on that day. While they were waiting for Shanker Lal, they heard noise of a quarrel from outside the house of Dhula Ram, on which, they rushed to that direction and saw that his father Shanker Lal was being assaulted by Dhula Ram, Vardha Rama and Banshi Lal, Residents of Gundali Falla Laka Kolra by lathis, fists and kicks. His father fell down on the ground as a result of the assault. When the informant and his relatives reached the place of incident, the assailants went back into their respective houses. They checked Shanker Lal, who did not respond and had passed away. Numerous injuries were seen on his head, hands, legs and other parts of the body. The informant alleged that the three assailants had beaten and killed his father owing to an old dispute of money. It was further stated in the FIR that his mother, wife and sister had seen the incident. On the basis of the report aforestated, an FIR No. 127/2015 came to be registered at the Police Station Sayra, District Udaipur for the offence under Section 302/34 of the IPC. The usual investigation was undertaken. The dead body of Shanker Lal was subjected to postmortem by a Medical Board constituted at Primary Health Officer, Nandeshma, which issued a postmortem report Ex.P/25 wherein, total 12 injuries were noted. These injuries are described hereinbelow for the sake of ready reference.
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(3 of 10) [CRLAD-114/2019] (1) Lacerated wound - 2cm x Right eyebrow middle region. 0.5cm x 0.5cm (2) Bruises - 10cm x 2cm Left posterior region of neck. (3) Incised wound - 4cm x Left scapular region. 1cm x 1cm (4) Abrasion 4cm x 4cm Medial region of right elbow. (5) Abrasion 1cm x 1cm Left side above elbow.
(6) Bruise 2cm x 3cm Left side under posterior region of ear.
(7) Bruise 12cm x 12cm Left side chest to across abdomen back side.
(8) Bruise - 8cm x 2cm Left lumbar region. (9) Abrasion 1cm x 2cm on L2 region of back. (10) Bruise 3cm x 3cm Left lateral side of back. (11) Stab wound - 1cm x Left lateral region of thigh. 1cm x 0.5cm (12) Stab wound - 1cm x Right medial side of leg 0.5cm x 0.5cm below knee.
The Medical Officers also noted the fact that clotted blood was seen in the coronary artery and the ventricle wall and that necrosis was evident. The Medical Board gave an opinion that cause of death of the victim was cardiac arrest due to multiple injuries all over the body. The accused-appellants were arrested and weapon of offences i.e. lathis and their own blood stained clothes were recovered by the Investigating Officer during investigation. Ultimately, after completing the investigation, a (Downloaded on 22/01/2021 at 08:45:18 PM) (4 of 10) [CRLAD-114/2019] charge sheet came to be filed against the accused-appellants for the offence under Section 302/34 IPC in the court concerned.
As the offence was exclusively triable by the Court of Sessions the case was committed to the Court of Sessions Judge, Udaipur from where, it was initially transferred to the Court of SC/ ST (Prevention of Atrocities) Act cases then on to the Court of Additional Sessions Judge No.2, Udaipur for trial where charge was framed against the accused-appellants for the above offence. They pleaded not guilty and claimed trial. The prosecution examined as many as 22 witnesses and exhibited 29 documents to prove its case. The accused-appellants were questioned under Section 313 CrPC and upon being confronted with the circumstances appearing against them in the prosecution evidence, they denied the same and claimed to be innocent. However, no evidence was led in defence. At the conclusion of the trial, after hearing the arguments advanced by the prosecution and the defence counsel and upon appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the accused-appellants as above. Hence, this appeal.
Shri J.V.S.Deora, learned counsel appearing on behalf of the accused-appellants vehemently and fervently urged that the evidence of the prosecution eye-witnesses is not convincing and is highly contradictory and that they are not reliable witnesses. His alternative submission was that even if the evidence of the eye- witnesses is accepted to be true, the offence attributed to the appellants would not travel beyond Section 323/324 IPC because the Medical Jurist Dr. Pratkishit Vyas (PW-22), who carried out the postmortem upon the dead body of the deceased Shanker Lal (Downloaded on 22/01/2021 at 08:45:18 PM) (5 of 10) [CRLAD-114/2019] admitted that neither any of the injuries suffered by the deceased was grievous in nature nor was any of the internal vital organs damaged thereby. The cause of death was opined to be Cardiac arrest which as per Shri Deora could not be the result of the superficial external injuries. He thus urges that the impugned judgment deserves to be set aside and the conviction of the accused-appellants deserves to be toned down from Section 302/34 to one Section 323/324 IPC.
E converso, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellants' counsel. He too, is not in a position to dispute the fact that the dead body of Shanker Lal was examined by the Medical Board constituted by the Primary Health Center, Nandeshma, which issued the postmortem report (Ex.P/25), noting presence of 12 superficial injuries on various parts of body and that none of the internal organs was damaged as a result thereof. The cause of death was opined to be cardiac arrest but the Board did not give a logical reason as to how the injuries suffered by the victim could cause cardiac arrest.
We have given our thoughtful consideration to the submissions advanced at the Bar and have gone through the impugned judgment.
Suffice it to say that there is an omnibus allegation in the FIR (Ex.P/23) that all the three accused were seen assaulting the deceased by lathis, fists and kicks. The eye-witness Smt. Panki Bai (PW-1) alleged in her evidence that she saw the three accused persons assaulting her husband Shanker Lal by lathis, fists and kicks. Dhula Ram inflicted a lathi blow on the head of her husband whereas Vardha Ram and Banshi Lal assaulted him by 'Kunts'. (Downloaded on 22/01/2021 at 08:45:18 PM)
(6 of 10) [CRLAD-114/2019] Nonetheless, there was no such allegation in the FIR or in the investigational statement of this witness that any of the accused persons was armed with a sharp weapon.
Smt. Suarti (PW-2) alleged that she saw the accused- appellants assaulting her father-in-law Shanker Lal by lathis.
Vasani (PW-3) alleged that she saw the three accused- persons assaulting her father by 'Soti' (a thick wooden stick), lathi and fists.
Raju Ram (PW-4), first informant alleged that the accused- persons were seen beating his father by kicks and fists.
Injury No.3 is described to be an incised wound on the scapular region whereas, injuries Nos.11 and 12 are described to be stab wounds on the thigh and the knee. It is clear from an evaluation of the ocular testimony that none of the accused was armed with a sharp weapon.
Manifestly, thus, there are grave contradictions in the statements of the prosecution witnesses as to the manner in which, the deceased was allegedly assaulted. The highest inference which can be drawn from their statements would be that the accused-appellants were seen assaulting the victim Shanker Lal by lathis, fists and kicks without attributing any specific role to any particular accused. The Medical Officer (PW-22) Dr. Pratikshit Vyas was a member of the Medial Board, which conducted postmortem and noted presence of the above mentioned injuries on the dead body of Shanker Lal. The Board issued the postmortem report (Ex.P/25) in which it is clearly mentioned that all the internal organs underneath the external injuries were healthy and intact. Apparently, none of the external injuries damaged the muscles, bones or joints of the deceased. The (Downloaded on 22/01/2021 at 08:45:18 PM) (7 of 10) [CRLAD-114/2019] skull, brain and vertebrae were also healthy. The only significant fact noted by the Board in the postmortem report (Ex.P/25) was regarding existence of clotted blood in the coronary artery and the ventricle. Necrosis was also observed. The meaning of the 'Necrosis' is "death of most or all of the cells in an organ or tissue due to disease, injury, or failure of the blood supply". Though no definite opinion was expressed by the Medical Jurist but if at all, the cardiac arrest was caused by failure of blood supply, it could not have been the direct result of the injuries noted in the postmortem report because neither the injuries were having any significant depth nor was any blood vessel damaged thereby.
As an upshot, we are of the firm view that the conclusions drawn by the trial court in the impugned judgment while convicting the accused-appellants for the offence under Section 302 IPC are totally perfunctory and laconic. On going through the impugned judgment, we find that in the entire text running into about 44 pages, the learned trial court failed to discuss the medical evidence as deposed by Medial Officer Dr. Pratikshit Vyas (PW-22) in an apropos manner. The casual approach of the Presiding Officer in a case involving an offence punishable with capital punishment in failing to discuss the medical evidence indicates lack of understanding of Medical Jurisprudence.
Hon'ble the Superme Court had occasion to consider a factual scenario similar to one involved in the case at hand in the case of State of Karnataka Vs. Shivalingaiah Alias Handigidd reported in AIR 1988 SC 115 wherein it was held as below:-
"2. The short question involved is whether the act of the respondent falls within clause Thirdly (sic.) to Section 300 and therefore he is guilty of culpable homicide amounting to murder punishable under (Downloaded on 22/01/2021 at 08:45:18 PM) (8 of 10) [CRLAD-114/2019] Section 302 Penal Code. The gravamen of the charge against the respondent was that after an altercation he suddenly pulled the deceased Giri Gowda by his testicles and squeezed the same as a result of which he fell down unconscious and died almost instantaneously. The testimony of Dr. T.C. Seetharam, Medical Officer, L.F. Hospital, Chennapatna shows that death was as a result of cardiac arrest resulting from shock due to injuries to the testis. The learned Sessions Judge held that the offence made out by the prosecution fell only under Section 323 Penal Code and sentenced the respondent to undergo rigorous imprisonment for one year. On appeal, the High Court held that it was difficult to draw an inference that the respondent had any intention to kill or murder the deceased Giri Gowda. It observed that the incident took place all of a sudden and on the spur of the moment when the deceased put his hands on the shoulder of the respondent with a view to make him sit down. It accordingly held that the respondent appears to have acted on a sudden impulse without any intention or knowledge that his act of squeezing the testicles of the deceased was likely to cause his death.
3. We have heard learned counsel for the parties as to the nature of offence and sentence. Agreeing with the High Court, we are inclined to the view that in the facts and circumstances it cannot be said that the respondent had any intention of causing the death of the deceased when he committed the act in question nor could he be attributed with knowledge that such act was likely to cause his cardiac arrest resulting in his death. We wish to make it clear that it cannot be that in all circumstances such an act would not be covered by clause Thirdly (sic.) and therefore amount to culpable homicide amounting to murder punishable under Section 302 or culpable homicide not amounting to murder punishable under Section 304 Part II. It all depends on the facts and circumstances of each case whether the accused had the requisite intention or knowledge. The High Court has brought out the circumstances which show that the respondent acted on a sudden impulse. The High Court was therefore right in its conclusion that the act complained of would not amount to culpable homicide amounting to murder or not amounting to murder punishable under Section 302 or Section 304 Part II. Question however still remains as to the nature of the offence committed by the (Downloaded on 22/01/2021 at 08:45:18 PM) (9 of 10) [CRLAD-114/2019] respondent. In our opinion, the High Court was not right in its view that the act of squeezing the testicles of a person would be an offence of voluntarily causing simple hurt punishable under Section 323, Penal Code. The testimony of Dr. T.C. Seetharam clearly shows that such act was dangerous to human life. It actually led to the cardiac arrest of the deceased as a result of which he died almost instantaneously. Such an act in the instant case would clearly be covered by clause* Thirdly (sic.) of Section 320 Penal Code and therefore amount to grievous hurt punishable under Section 325 Penal Code.
4. We accordingly allow the appeal to this extent altering the conviction of the respondent from under Section 323 to one under Section 325 Penal Code. The respondent is sentenced to undergo rigorous imprisonment for a period of three years."
[Emphasis supplied] In the above judgment, the Hon'ble Supreme Court held that the act of squeezing the testicles of the deceased caused amounted to infliction of grievous injury within the meaning of Clause Eightly of Section 320 IPC and modified the judgment of the High Court whereby the conviction of the accused therein had been toned down from Section 302 IPC to Section 323 IPC and instead convicted him for the offence under Section 325 IPC.
In the present case, as has been noted above, all the injuries caused to the deceased were superficial and simple in nature. None of the internal organs of the deceased were effected by the injuries. So far as the sharp injuries are concerned, none of the prosecution eye-witnesses gave convincing evidence to establish that any of the accused used a sharp weapon while assaulting Shanker Lal. There exist grave contradictions in the statements of the prosecution eye-witnesses on this aspect of the case. Thus, none of the eight clauses of Section 320 IPC apply to the injuries (Downloaded on 22/01/2021 at 08:45:18 PM) (10 of 10) [CRLAD-114/2019] caused to the victim of the case at hand. We, therefore, are of the firm opinion that the trial court committed a grave factual error while convicting the accused-appellants for the offence under Section 302/34 IPC. The findings so recorded in the impugned judgment are perverse on the face of the record and cannot be sustained.
As a result of the foregoing discussion, the impugned judgment dated 16.03.2019 passed by the learned Additional Sessions Judge No.2, Udaipur in Sessions Case No.39/2017 (387/2015) is set aside. The accused-appellants are acquitted of the charge under Section 302 read with Section 34 IPC and instead, they are convicted for the offence under Section 323 IPC and are sentenced to imprisonment for one year and a fine of Rs.1,000/- each. In default of payment of fine, they shall further undergo 15 days simple imprisonment. The accused-appellants Dhula Ram and Varda Ram are in custody for last more than five years, whereas the accused-appellant Banshi Lal is in custody for the last one year and ten months. They shall be released from custody forthwith upon depositing the amount of fine if not wanted in any other case.
The appeal is partly allowed in these terms.
(DEVENDRA KACHHAWAHA),J (SANDEEP MEHTA),J 39-Mamta/Devesh (Downloaded on 22/01/2021 at 08:45:18 PM) Powered by TCPDF (www.tcpdf.org)