Rajasthan High Court - Jodhpur
Nemi Chand @ Nema Ram And Anr vs State on 13 December, 2018
Author: Vinit Kumar Mathur
Bench: Sandeep Mehta, Vinit Kumar Mathur
(1 of 12) [CRLA-295/2011]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 295/2011
1. Nemichand @ Nema Ram S/o Labu Ram, by Caste Meghwal,
aged 23 years,
2. Smt. Kamli W/o Labu Ram, by Caste Meghwal, aged 50
years,
Both are R/o Jaajeewal Bhatiyan, P.S. Dangiyawas, District
Jodhpur.
(At present lodged in Central Jail, Jodhpur.)
----Appellants
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. Nishant Bora
For Respondent(s) : Mr. J.P.S. Choudhary, Public
Prosecutor
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment Per Hon'ble Mr. Vinit Kumar Mathur, J.
Reserved on 04/12/2018 Pronounced on 13/12/2018 The instant appeal under Section 374(2) Cr.P.C. has been preferred by the appellants Nemichand @ Nema Ram and Smt. Kamli against the judgment dated 22.03.2011, passed by learned Additional Sessions Judge (Fast Track) No.1, Jodhpur Metropolitan in Sessions Case No.71/2010 whereby the accused-appellants stand convicted and sentenced as under:
(2 of 12) [CRLA-295/2011]
Accused-appellant Nemichand @ Nema Ram:
Offence Sentence Fine Sentence in
Default of
payment of fine
Under Section 1 month's S.I. - -
341 IPC
Under Section 1 year's S.I. - -
323 IPC
Under Section 2 years' S.I. - -
324/34 IPC
Under Section Imprisonment 10,000/- 2 years' S.I.
302/34 IPC for life
Accused-appellant Kamli:
Offence Sentence Fine Sentence in
Default of
payment of fine
Under Section 1 month's S.I. - -
341 IPC
Under Section 1 year's S.I. - -
323 IPC
Under Section 2 years' S.I. - -
324/34 IPC
Under Section Imprisonment 5,000/- 1 year's S.I.
302/34 IPC for life
The prosecution story as unfolded by the complainant Smt. Jaiti in her Parcha Bayan (complaint) Ex.P-15 is that she lives in village Jaajeewal Bhatiyan with her family. Her family is comprising of her husband Koja Ram, mother-in-law Sigu Devi and her son Surjit. On 10.02.2010 in the evening at around 6:00 PM while she was fetching water from the Government tube-well, she saw that her husband was going towards their house from the 'Bada' (shed). On the road near the tube-well, he was intercepted by the accused Nema Ram and his mother Kamli. Kamli caught hold of her husband's hands from behind and exhorted Nema to assault Koja Ram. Nema Ram inflicted 4-5 knife blows on the (3 of 12) [CRLA-295/2011] stomach and chest of her husband who screamed and fell on the ground. She immediately ran towards her husband in order to save him whereupon, Nema Ram inflicted a knife blow on the left side of her chest resulting into a bleeding stab injury. Her brother-in-law (Jeth) Pukhraj also rushed to the spot and witnessed this incident. Her mother-in-law Sigu Devi also reached the spot. Nema Ram and his mother Kamli ran away from the place of incident towards Lordi. Her husband Koja Ram died on the spot due to the injuries sustained on the chest and stomach and she was taken to the hospital by her brother-in-law Pukhraj and his wife. On 08.02.2010 in the evening at around 7:00 PM Nema Ram and his mother Kamli had a heated altercation and assaulted her near the same Government tube-well. Nema Ram and her mother Kamli were bearing ill will with her family because one of their close relative Gita contested Mandal Election and since her family was supporting Gita, the accused persons were keeping a grudge against her family.
On the aforesaid complaint, a formal FIR bearing No.19/2010 was registered against the accused persons for the offences under Sections 302, 341 & 323 IPC at the Police Station Dangiyawas, Jodhpur Rural.
After completion of investigation, police filed a charge-sheet for the offences under Sections 341, 323, 324 & 302/34 IPC against the accused-appellants.
Learned Trial Court framed, read over and explained charges for the offences under Sections 341, 323, 324/34 & 302/34 IPC to the accused- appellants who denied the charges and sought trial.
(4 of 12) [CRLA-295/2011] During the trial, the prosecution examined as many as 19 witnesses and 24 documents and 9 Articles were exhibited.
The accused-appellants were examined under Section 313 Cr.P.C. and they were confronted with the evidence adduced during the course of trial to which they denied and stated that they are innocent and had been falsely implicated in the present case. They stated that in the election campaign of Gita Devi, Kana Ram and Koja Ram were on one side in support of Gita Devi and there was no enmity between them. The Choudharys of the village, in order to evict them from their Mohalla, in connivance with the police have lodged a false case against them. He (Nema Ram) did not commit the murder of Koja Ram with knife nor Koja Ram was caught hold of by his mother Kamli. Thus, they both denied the allegations levelled against them.
Learned trial Court, after hearing the arguments from both the sides, taking into consideration and appreciating the documentary evidence and the statements of witnesses, convicted and sentenced the accused-appellants vide judgment dated 22.03.2011. Hence this appeal.
We have heard learned counsel for the appellants and the learned Public Prosecutor.
Learned counsel for the appellants vehemently argued that it is a case of sudden fight and it happened only because two days prior to the incident there was a heated altercation between the accused persons and Smt. Jaiti and while the accused persons were approached and reprimanded by the deceased, tempers flared and there was exchange of hot words resulting into the fatal blows inflicted by Nemichand. There was no premeditation or a (5 of 12) [CRLA-295/2011] prior concert. Therefore there is no question of common intention between the accused persons in the present case. It was a case of sheer sudden fight wherein because of heated altercation between both the sides, the appellant Nemichand lost control and inflicted fatal blows resulting into the death of Koja Ram.
He further submits that there is no question of enmity between the parties as Gita Devi to whom the complainants were supporting in the Mandal election, ultimately lost the election, therefore, there was no question for the accused persons to have entertained a grudge against the family members of deceased.
It is therefore submitted by learned counsel for the appellants that by taking into consideration the submissions and the statements of prosecution witnesses, the learned trial Court was not justified in convicting the accused-appellants in the above manner and rather, the case of appellant Nemichand @ Nema Ram does not travel beyond Part-I of Section 304 IPC. As far as the co-accused Kamli being mother of Nemichand is concerned, she has virtually been falsely implicated with the aid of Section 34 IPC whereas there is no such evidence to implicate her in the present case. He therefore prays that the judgment of conviction passed against Smt. Kamli is required to be set aside on the ground that even if the prosecution story is taken on its face value, the allegation against appellant Smt. Kamli that she caught hold of the hands of deceased Koja Ram, the allegation to exhort Nemi Chand to assault Koja Ram is an exaggeration as except Smt. Jaiti, the two other eye-witnesses i.e. PW-9 Smt. Sigu Devi and PW-10 Pukhraj have not stated that Smt. Kamli in any manner had exhorted Nemo Ram to assault and kill Koja Ram. Therefore, he (6 of 12) [CRLA-295/2011] submits that the appeal qua accused-appellant Kamli merits acceptance in the facts and circumstance of the present case.
Learned counsel for the appellants relied upon the judgment passed by the Hon'ble Supreme Court in the case of Shambhu Kuer Vs. State of Bihar; (1982) 1 SCC 486 and the judgment delivered in the case of Ramashish Yadav Vs. State of Bihar; AIR 1999 SC 3830.
Per contra, learned Public Prosecutor opposed the submissions advanced by learned counsel for the appellants. While supporting the judgment of conviction passed by learned trial Court, it is submitted that in view of the statements of PW-9 Sigu Devi, PW-10 Pukhraj and PW-13 Smt. Jaiti (injured eye- witness), the prosecution had been able to prove the allegations against the accused-appellants beyond all reasonable doubt. He submitted that the ocular evidence of PW-9 Sigu Devi, PW-10 Pukhraj and PW-13 Smt. Jaiti is fully corroborated by the medical evidence i.e. statement of PW-11 Dr. P.C. Vyas, postmortem report (Ex.P-10) and the Forensic Science Laboratory report (Ex.P-22).
It is further submitted by learned Public Prosecutor that as per the postmortem report (Ex.P-10) of the deceased Koja Ram, the cause of death is opined as shock and haemorrhage due to injuries to the chest and abdomen, which are sufficient to cause death in ordinary course of nature. As per the Forensic Science Laboratory report (Ex. P-22), on Serological examination, the blood stains were found to be of human origin and the same were of 'B' Group of blood on the weapon of offence i.e. knife which was recovered at the instance of accused Nema Ram vide seizure memo (Ex.P-8). The blood group i.e. 'B' found on the knife (7 of 12) [CRLA-295/2011] matched with the blood group of deceased. He submits that in these circumstances the learned trial Court was perfectly justified in convicting the accused-appellants vide judgment dated 22.03.2011 and the same does not warrant interference by this Court.
We have considered the submissions made at bar and have minutely gone through the evidence on record.
PW-13 Smt. Jaiti who is the wife of deceased Koja Ram has deposed before the trial Court that while she was fetching water from the Government tube-well, she saw that her husband was going to the house from their 'Bada' (shed) and suddenly Kamli caught hold of the hands of her husband and exhorted Nemichand to assault, whereafter Nemichand stabbed her husband 5-6 times on various parts of his body. Her husband fell on the ground screaming. When she rushed towards her husband, Nemichand inflicted two knife blows to her and when her mother-in-law and brother-in-law (Jeth) reached the spot and raised a hue and cry, the accused persons ran away towards Lordi. Her husband died on the spot and she was taken to the Hospital. She further stated that because one of their close relative Gita contested election in which her family supported Gita therefore, the accused persons bore a grudge and enmity and because of this they assaulted her husband which resulted into his death.
PW-9 Sigu Devi and PW-10 Pukhraj have stated almost on the same lines but in their statements they have not stated that Kamli had exhorted or instigated Nema Ram to kill Koja Ram. Therefore, in our opinion since the relations between two families were not cordial on account of having supported Gita in the (8 of 12) [CRLA-295/2011] election campaign and keeping in mind the heated altercation which took place between Smt. Jaiti and the accused persons 2 days ago, some deliberations/heated altercation took place between them and in the incident, the knife blows were inflicted upon Koja Ram by Nemichand and Kamli caught hold of the hands of the deceased.
As far as the case of accused-appellant Nemichand @ Nema Ram is concerned, we are in total agreement with learned trial Court as he was the main assailant who inflicted the repeated knife blows on the body of the deceased Koja Ram which proved instantaneously fatal. Keeping in mind the number of blows inflicted, the intention can be gathered that the accused wanted to murder Koja Ram. Therefore, in our opinion, the arguments of learned counsel for the appellants that it is a case of knife blows caused unintentiionally in a sudden fight is noted to be rejected. Besides this, we find that the place of incident is also far away from the house of the accused as per the Site Plan (Ex.P-1). Therefore, it was not the deceased Koja Ram who went to the house of Nema Ram rather it was Nema Ram and his mother Kamli who followed Koja Ram and inflicted fatal injuries. Further, the recovery of weapon of offence i.e. knife on the information given by accused Nema Ram under Section 27 of the Evidence Act and the same having blood stains matching blood group of the deceased fully corroborates the ocular evidence of PW-9 Sigu Devi, PW-10 Pukhraj and PW-13 Smt. Jaiti. The injuries inflicted by Nema Ram as mentioned in the statements of prosecution witnesses are clearly fortified by the postmortem report (Ex.P-10) and the statement of PW-11 Dr. P.C. Vyas. We also note that (9 of 12) [CRLA-295/2011] when Smt. Jaiti intervened she was also inflicted knife blows by Nema Ram, injury report of Jaiti being Ex.P-22. Hence, we are not inclined to interfere with the findings arrived at by learned trial Court convicting the accused-appellant Nema Ram @ Nemi Chand for the offences under Sections 341, 323, 324 & 302 IPC.
As far as the case of appellant Kamli is concerned, we find that there is exaggeration by Smt. Jaiti who has stated that Kamli exhorted Nema Ram to assault Koja Ram but the same is missing in the statements of PW-9 Sigu Devi, PW-10 Pukhraj who are also the eye-witnesses to the incident. The only involvement of Kamli in the present incident is to catch hold the hands of Koja Ram. Merely because Kamli caught hold of hand of deceased and Nema Ram inflicted knife blows, it cannot be inferred beyond reasonable doubt that she shared common intention with Nema Ram to murder the deceased.
We are of the view that the evidence on record is not sufficient to satisfy that the accused-appellants Nema Ram and Kamli shared a prior common intention for killing the deceased any time before the incident. Therefore, in our opinion, essential ingredients so as to establish the charge under Section 302/34 IPC are not fully proved beyond all reasonable doubts against the appellant Kamli and at the best, she can be clothed with the common intention that by doing the acts alleged, she would be aiding the principal accused Nemichand to inflict grievous injuries upon the deceased. Thus, conviction of the appellant Smt. Kamli deserves to be altered from the offence under Section 302/34 IPC to one under Section 326/34 IPC.
(10 of 12) [CRLA-295/2011] We are gainfully supported by the observations of the Hon'ble Supreme Court in the case of Shambhu Kuer (supra) wherein the Hon'ble Supreme Court has held as under:
"We have heard the learned Counsel on both sides. There were three persons who were prosecuted for the murder of one Surendra Prasad Singh, a young man of about 21 years. The prosecution allegation was that Shambhu Kuer caught hold of the deceased, and Mandip gave three blows to the deceased with a knife. Out of the accused persons, one, Kailash was acquitted by the trial Court, while the other two were convicted : Mandip under Section 302 and Shambhu Kuer under Section 302 read with Section 34 IPC. During the pendency of the appeal Mandip was released by Government on the ground of serious illness. Mandip's appeal was therefore dismissed as infructuous. The conviction of appellant Shambhu Kuer was upheld by the High Court, with the finding that he continued to hold the deceased till the assault was completed by Mandip. One of the three injuries on the deceased which had pierced the right lung, was according to the medical witness, sufficient to cause the death in the ordinary course. Counsel for the appellant contends, and we think right that the eye-witnesses did not clearly state that the appellant continued to hold the deceased till the assault was over. All that appears in the evidence is that Shambhu Kuer caught hold of the deceased and the latter scuffled to get himself released. Immediately thereafter Mandip took out a knife and started assaulting the deceased. From the mere fact that the appellant caught hold of the deceased and scuffled with him, while Mandip took out a knife and commenced the assault, it cannot be inferred beyond reasonable doubt, that he shared the intention of Mandip to murder the deceased. At the most, he was vicariously liable for an offence under Section 326 read with Section 34, Penal Code. We therefore, partly allow this appeal, alter the conviction of the appellant to one under Section 326 read with Section 34 I.P.C. and sentence him to imprisonment already undergone, which, we are told, is about 6 ½ years."
The following observations made by the Hon'ble Supreme Court in the case of Ramashish Yadav (supra) are also applicable to the case of appellant Smt. Kamli.
(11 of 12) [CRLA-295/2011] "3. Coming to the question of applicability of Section 34 for the murder of Tapeshwar, we find from the evidence of the three eye-witnesses that while Ram Pravesh Yadav and Ramanand Yadav caught hold of Tapeshwar, accused Samundar Yadav and Sheo Layak Yadav came with gandasa and gave blows on the head of Tapeshwar, as a result of which Tapeshwar died, Section 34 lays down a principle of joint liability in the doing of a criminal act. The absence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a prearranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of mind may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be pre-arrangement or premeditated concert. This being the requirement of law for applicability of Section 34 IPC, from the mere fact that accused Ram Pravesh Yadav and Ramanand Yadav came and caught hold of Tapeashwar, whereafter Samundar Yadav and Sheo Layak Yadav came with gandasa in their hands and gave blows by means of gandasa, it cannot be said that the accused Ram Pravesh Yadav and Ramanand Yadav shared the common intention with accused Samundar yadav and Sheo Layak Yadav. Consequently, accused Ram Pravesh Yadav and Ramanand Yadav cannot be held guilty of the charge under Section 302/34 IPC but accused Samundar Yadav and Sheo Layak Yadav did commit the offence under Section 302/34, having assaulted deceased Tapeshwar on his head by means of gandasa on account of which Tapeshwar died. The accused Ram Pravesh Yadav and Ramanand Yadav are, therefore, acquitted of the charges levelled against them and they be set at liberty forthwith. So far as the two other appellants are concerned, namely, Ramashis Yadav and Sukhdeo Yadav, they have merely caused injury to the informant by means of a knife and for causing such injury they can only be convicted under Section 324/34 IPC and are sentenced to imprisonment for two years. But they have already been in custody for more than seven years by now, they should also be set at liberty forthwith. In the net result, therefore, the conviction of appellant Ram Das Yadav under Section 302 IPC and sentence of imprisonment for life is upheld and (12 of 12) [CRLA-295/2011] his appeal stands dismissed. Conviction of all other appellants under Section 302/149 is set aside. Conviction of appellants Samundar Yadav and Sheo Layak Yadav under Section 302/34 IPC and sentence of imprisonment for life is upheld. Appeal by them, therefore, stands dismissed. Accused Ram Parvesh and Ramanand are acquitted of the charges and be set at liberty forthwith. Accused Ramashis Yadav and Sukhdeo Yadav are convicted under Section 324/34 IPC and sentenced to two years' R.I. and since they have already been in custody for more then seven years, they are directed to be set at liberty forthwith.
4. The appeals are disposed of accordingly." In view of the discussion made above, the present appeal is partly allowed and the conviction of appellant Kamli is altered from the charge under Section 302/34 IPC to one under Section 326 read with Section 34 IPC and we sentence her to the imprisonment already undergone by her which is about 8 years and 10 months and fine of Rs.2000/- in default of payment of fine, to undergo further two months' simple imprisonment. She shall be released from the judicial custody forthwith upon depositing the amount of fine, if not required in any other case.
The appeal qua appellant Nemichand @ Nema Ram is dismissed and his conviction under Section 302, 341, 323 & 324 IPC is maintained.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J 3/Ramesh/-
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