Madhya Pradesh High Court
Lalaram And Others vs State Of M.P. on 20 April, 2017
Author: S. K. Awasthi
Bench: S. K. Awasthi
1 CRA 303/1999
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
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DB:- Hon'ble Shri Justice N. K. Gupta &
Hon'ble Shri Justice S. K. Awasthi
CRA 303/1999
Lalaram Kirar and Others
vs.
State of Madhya Pradesh
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Shri Atul Gupta, counsel for the appellants.
Dr.(Smt.) Anjali Gyanani, Public Prosecutor for the State/
respondent.
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JUDGMENT
(Delivered on 20/04/2017) Per Justice N. K. Gupta:-
The appellants have preferred the present appeal against the judgment dated 16th June,1999 passed by Second Additional Sessions Judge, Shivpuri in Sessions Trial No.124/1998, whereby the appellants have been convicted of offences under Sections 302/34 and 307/34 of IPC and sentenced to life imprisonment with fine of Rs.2,000/- and five years' rigorous imprisonment with fine of Rs.1,000/- respectively.
(2) The prosecution's case, in short, is that four- five years prior to the incident, the deceased Lalaram Rawat was working as a labourer in the fields of appellant Lalaram Kirar and also residing in the house of appellant Lalaram Kirar. It is alleged that he had illicit relation with the appellant No.3- Ramkunwar (wife of Lalaram Kirar) and, therefore, appellant Lalaram Kirar dismissed him from his job. The deceased Lalaram Rawat took a revenge by burning crops of soybean grain in the fields of the appellant Lalaram Kirar and, therefore, there was an enmity between the parties. On 17/12/1997 at about 11:00 am the deceased Lalaram Rawat and his brother Suraj Singh (PW5) were going in search of work 2 CRA 303/1999 towards village Sejbara. Suraj Singh was following his brother Lalaram Rawat. When the deceased Lalaram Rawat passed near the fields of the appellant Lalaram Kirar, the appellant Lalaram Kirar pushed the deceased Lalaram Rawat into the field and assaulted him with a farsa on his head. The deceased Lalaram Rawat fell down on the ground. On his shouting, Rorilal (PW4), Jagdish Rawat (PW8), Naresh (PW1), Sardar Rawat etc. rushed to the spot. The appellant No.3 Ramkunwar gave a blow of sickle on the neck of the deceased Lalaram Rawat and the appellant No.2-
Ramji assaulted the deceased Lalaram Rawat with a ballam which was affixed on an iron rod causing injury on right scapular region. Thereafter, appellant No.1- Lalaram Kirar gave a second blow of farsa on the head of the deceased Lalaram Rawat. When the witness Suraj Singh had tried to save his brother, the appellant No.1- Lalaram Kirar gave a blow of farsa on his head also and the appellant No.3- Ramkunwar gave a blow of sickle on his left jaw. The appellant No.2- Ramji gave a blow of ballam on his left hand. When Suraj Singh turned unconscious the appellants left the spot. The witness Rorilal (PW4) took the victim Suraj Singh (PW5) in injured condition and lodged the FIR Ex.P6 at Police Station Tendua. The injured person was sent for medico-legal examination. Dr.S.P.S. Raghuvanshi(PW7) performed the medico- legal examination of the victim Suraj Singh and gave a report Ex.P5. According to Dr. Raghuvanshi, three incised wounds were found on the person of victim Suraj Singh whereas one penetrated wound was found on his right arm. The incised wounds were on left cheek, back of neck and left side of head. He referred the victim Suraj Singh for X-ray examination and treatment.
(3) SHO Brajesh Singh Kushwah (PW9) went to the spot. After completing the formalities the dead body of the deceased Lalaram Rawat was sent for postmortem. Dr. SK Majeji (PW6) performed the postmortem on the body of the deceased Lalaram Rawat and 3 CRA 303/1999 gave a report Ex.P7. He found as many as ten injuries to the deceased, out of them four were incised wounds, found on left neck, left jaw, back of neck and right parietal region. According to Dr. SK Majeji, the deceased Lalaram Rawat died due to aforesaid injuries and his death was homicidal in nature.
(4) SHO Brajesh Singh Kushwah (PW9) picked up bloodstained soil and plain soil from the spot and prepared a seizure memo Ex.P2. He also prepared a spot map. He examined various witnesses. He had received the bloodstained clothes of the deceased Lalaram Rawat from the hospital and prepared a seizure memo Ex.P10. The appellants were arrested and they gave the information about the various weapons and one farsa and one ballam were recovered from the appellants Lalaram Kirar and Ramji respectively and prepared seizure memo Ex.P15 and Ex.P16 respectively. All the recovered articles were sent for Forensic Science analysis and a letter Ex.P17 was prepared. A report of Forensic Science Laboratory was filed as Ex.P18. Bloodstains were found on the weapons recovered from the appellants No.1 and 2- Lalaram Kirar and Ramji. The blood samples were sent to the serologist but no serologist report could be filed till disposal of the case. After due investigation, the charge- sheet was filed before the concerned Magistrate, who committed the case to the Court of Session and ultimately it was transferred to the Second Additional Sessions Judge, Shivpuri.
(5) The appellants abjured their guilt. They took a plea that when the appellants were working in their fields the deceased Lalaram Rawat along-with SurajSingh came to the spot and tried to take the appellant No.3 Ramkunwar forcefully and when the appellants tried to stop them, they assaulted the appellants Lalaram Kirar and Ramji. In support of the defence contention, Dr.SK Dwivedi (DW1) was examined to prove the MLC reports Ex.D7 and Ex.D8 of the accused Lalaram Kirar and Ramji 4 CRA 303/1999 respectively. Head Constable Babulal (DW3) was examined to prove the Rojnamcha Ex.D9 relating to FIR of the appellants. One Laljiram (DW2) was examined to prove the defence version and about the right of private defence which accrued to the appellants.
(6) The trial Court after considering the evidence adduced by the parties convicted and sentenced the appellants, as mentioned above.
(7) We have heard the learned counsel for the parties at length.
(8) In the present matter, it would be appropriate to consider the medical evidence first, so that it can be observed that death of the deceased Lalaram Rawat was homicidal in nature and the victim SurajSingh sustained fatal injuries. In this connection, evidence of Dr.SK Majeji (PW6) is important who performed the postmortem on the body of the deceased Lalaram Rawat and gave a report Ex.P7. He found following injuries to the deceased Lalaram Rawat:-
" (1) Deep incised wound 4 cm x 2 cm x 6 cm left side of neck below left angle of mouth. Clotted blood with extensive injuries to underlying tissue, blood vessels. (2) Incised wound with clotted blood 4 cm x 1 ½ cm x 3 cm on the chin slightly left side lower mandible broken.
(3) Incised wound 2 cm x ½ cm x 2 cm behind neck in upper part.
(4) Lacerated wound 6 cm x 2 cm x 2cm left parietal part of scalp.
(5) Incised wound 6 cm x 2 cm x 2cm right parietal part of scalp-sputum of adjacent bone, open. (6)Abrasion 1 ½ cm x ½ cm upper and middle and anterior aspect of neck.
(7)Bruise 2 ½ cm x 2 cm left scapula.
(8)Bruise 4 cm x 2 cm let shoulder (9) Abrasion 2 cm x 1 cm right chest upper and anterior aspect.
(10) Abrasion 2 cm x ½ cm left thigh upper medical aspect."5 CRA 303/1999
According to Dr. Majeji, the deceased Lalaram Rawat died due to injuries specially caused on his head and neck. A fracture of lower mandible bone was found. According to Dr. Majeji, the injuries were sufficient to cause death of the deceased Lalaram Rawat. Looking to the injuries caused to the deceased Lalaram Rawat such injuries could not be self-inflicted and also not to be caused due to an accident. Hence, opinion of Dr. Majeji is acceptable that the death of deceased Lalaram Rawat is homicidal in nature and the injuries were sufficient to cause death in the natural course of his life.
(9) Dr.SPS Raghuvanshi (PW7) examined the victim Suraj Singh and gave a report Ex.P8. He found following injuries to the victim Suraj Singh.
"(1) Incised wound size of 4 cm x 1 cm x 1/5 cm opened into buccal cavity left cheek.
(2) Incised wound size of 3.5 x 1.5x1.5 cm post aspect of lower 1/3 neck.
(3) Incised wound size of 3x½ x1 cm left parietal region of head.
(4)Punctured wound clotted blood present in all wounds size of ½ x ½ x ½ cm right forearm mid 1/3 post aspect."
He found three incised wounds to the victim Suraj Singh and one punctured wound on right forearm. He referred the victim Suraj Singh for X-ray examination and treatment. However, neither X-ray report was filed in the present case nor treatment papers of victim Suraj Singh were produced to show that either victim Suraj Singh sustained any grievous or fatal injury or injuries caused to him were sufficient to cause his death. Hence, it would be apparent from the report given by Dr.SPS Raghuvanshi (PW7) that the victim Suraj Singh sustained four injuries caused by sharp cutting or stabbing weapons.
(10) In the present case, Naresh (PW1), Khachchu (PW2), Puram (PW3), Rorilal (PW4), Suraj Singh (PW5) and Jagdish 6 CRA 303/1999 Rawat (PW8) were examined as eyewitness. Out of them, Naresh (PW1), Khachchu (PW2) and Puram (PW3) have partly turned hostile. They have stated that they saw the dead body of the deceased Lalaram Rawat but they did not claim to see the incident whereas Rorilal (PW4), Suraj Singh (PW5) and Jagdish Rawat (PW8) have narrated the entire story of the incident that the appellants had participated in the crime and killed the deceased Lalaram Rawat and also injured- victim Suraj Singh. According to these witnesses, the appellant Lalaram Kirar gave a blow of farsa on the head of deceased Lalaram Rawat and thereafter, the appellant Ramji assaulted the deceased Lalaram Rawat with a ballam causing injury on his scapular region. Thereafter, the appellant No.3- Ramkunwar gave a blow of sickle on the neck of the deceased Lalaram Rawat and again the appellant Lalaram Kirar gave a blow of farsa to the deceased Lalaram Rawat. It is also stated by these witnesses that the appellant Ramkunwar gave a second blow of sickle on jaw of the deceased Lalaram Rawat. However, some contraction is visible in the statements of these eye-witnesses. The victim Suraj Singh (PW5) has stated that appellant Ramji gave a blow of ballam on the neck of the deceased Lalaram Rawat which passed through and through the neck whereas no such blow was described by eyewitness Rorilal (PW4) or eye-witness Jagdish Rawat (PW8). If evidence of these witnesses is examined in the light of postmortem report Ex.P7 given by Dr. SK Majeji (PW6), then the injuries caused by the appellant Lalaram Kirar were found to the deceased Lalaram Rawat. According to Dr. Majeji, injury no.5 was an incised wound found on the right parietal region of deceased Lalaram Rawat which could be caused by farsa. Similarly, injury no.4 was a lacerated wound but looking to its size, it could be caused by a weapon having lengthy blade. It is possible that due to thickness of hair a clean cut wound could not be caused. Hence, it cannot be said that injury no.4 does not co-relate with the assault done by 7 CRA 303/1999 the appellant Lalaram Kirar. However, Dr. SK Majeji (PW6) did not find any wound caused by stabbing weapon like ballam as told by the witnesses. However, as told by the witnesses the appellant Ramji also assaulted the deceased Lalaram Rawat with the portion of Ballam fixed with an iron rod and some contusions were found on the deceased Lalaram Rawat. Injuries No. 6 to 10 could be caused due to fall of the deceased Lalaram Rawat after getting various blows. Hence, the evidence of eye-witnesses can be accepted that the appellant Lalaram Kirar had assaulted the deceased Lalaram Rawat. However, it is also established that the appellant Ramji assaulted the deceased Lalaram Rawat with the portion which contains an iron rod and he did not cause any fatal injury or injury which could be caused by penetrating object. Dr.SK Majeji (PW6) found so many injuries caused by hard and blunt object like an iron rod to the deceased Lalaram Rawat. The Injury No.3 which was found to the deceased Lalaram Rawat on back of the neck could be caused by a sickle. However, Dr. SK Majeji did not mention the dimension of the injury whether it was curved or it could be caused by curved surface of sharp cutting weapon. However, in the absence of such details, it cannot be ruled out that such injury was caused by the appellant Ramkunwar. Hence, the medical evidence is corroborative with the eye-witnesses.
(11) The evidence of various eye-witnesses is duly corroborated by the FIR Ex.P6 which was lodged by the witness Rorilal (PW4) at Police Station Tendua. The incident took place at about 12:00 in the noon and the FIR was lodged at about 10:00 pm in the night whereas the distance of the Police Station from the place of incident was 21 kilometers. Rorilal (PW4) has mentioned in the FIR Ex.P6 itself that since he did not get the availability of transportation he could not visit the police station. He left the dead body of the deceased Lalaram Rawat and injured Suraj Singh at the spot and, thereafter, when Sarpanch and Chowkidar visited the 8 CRA 303/1999 place of spot he went again and thereafter, when the police took the dead body of the deceased Lalaram Rawat to the police station, he went the police station and lodged the FIR. It is clear from the injured condition of victim Suraj Singh and in-activeness of various witnesses, it is apparent that no one took any care to take the victim Suraj Singh to the hospital within time and he and the deceased were lying at the spot. The villagers have informed Sarpanch and thereafter he arranged for calling of the police and thereafter FIR could be lodged. Hence, though FIR is delayed by at least six hours but by statement of Rorilal (PW4) an explanation is given about the delay. As it is visible from the statement of witnesses Naresh (PW1), Khachchu (PW2) and Puram (PW3) that they saw the incident but before the trial Court they denied that they were the eye-witnesses. Rorilal (PW3) was also partly turned hostile. Since there was nobody with the deceased Lalaram Rawat and Suraj Singh who could immediately go and lodge the FIR, the FIR was lodged after intervention of the police and hence, it was lodged with delay. However, there is no reason to discard the FIR. There is no relationship shown between the witnesses Rorilal (PW3) and the deceased Lalaram Rawat. On the other hand, the appellants have claimed that a quarrel took place and they had shown the presence of all the appellants at the fields and they claimed the right of private defence and, therefore, by the defence taken by the appellants, it is apparent that they do not claim that the incident was caused by someone else and they were falsely implicated in the matter. Under these circumstances, where the evidence of the eye-witnesses is duly corroborated by the FIR as well as the medical evidence, the testimony of eye-witnesses is believable.
(12) SHO Brajesh Singh Kushwah (PW9) has also proved the memo Ex.P13 and ExP14 relating to confession done by the appellants Lalaram Kirar and Ramji under Section 27 of the 9 CRA 303/1999 Evidence Act and consequential recovery of farsa and ballam respectively by seizure memo Ex.P15 and Ex.P16 from the appellants Lalaram Kirar and Ramji respectively but in the Forensic Science Laboratory report Ex.P8 such weapons were found stains of blood but no report of serologist was filed to show that those weapons stained with human blood or blood of the deceased Lalaram Rawat. Under these circumstances, seizure of weapons has no much evidentiary value in the present case. However, on the basis of aforesaid evidence given by the eye- witnesses which is reliable, it is proved beyond doubt that the appellants participated in the crime have also assaulted the deceased Lalaram Rawat with various weapons causing his death.
(13) The eye-witnesses Rorilal (PW4), SurajSingh (PW5) and Jagdish Rawat (PW8) have stated that when SurajSingh intervened to save his brother then the appellant Lalaram Kirar gave a blow of gandasi on his neck whereas the appellant Ramkunwar gave a blow of sickle on his face and again Lalaram Kirar gave two or three blows of gandasi on his head. The appellant Ramji assaulted him with a ballam on his scapular region and one blow was given by appellant Ramji on his neck with a ballam. If evidence of these eye-witnesses is considered in the light of evidence given by Suraj Singh (PW5) then injury no.1 found by Dr. SPS Raghuvanshi (PW7) to the victim Suraj Singh (PW5) correlates with statements of eyewitness that the appellant Ramkunwar gave a blow of sickle on his mouth. The witness Suraj Singh (PW5) has used the word "gandasi" for farsa kept by the appellant Lalaram Kirar whereas other witnesses have used the word " farsa''. Hence, it makes no difference in dealing with the matter and it cannot be considered as a material contradiction. The injuries no.2 and 3 were found to the victim Suraj Singh (PW5) caused by the appellant Lalaram Kirar with the help of farsa and as told by eye-witnesses. Dr.SPS Raghuvanshi (PW7) found 4 th 10 CRA 303/1999 injury to the victim Suraj Singh as a punctured wound on back side of right forearm. It is possible that the victim Suraj Singh would have felt pain on scapula portion whereas the injury was caused on the back of right forearm. Hence, it is established by the version of eye-witnesses that all the appellants had assaulted the victim Suraj Singh (PW5) with various weapons including sharp cutting and stabbing weapons.
(14) The appellants have been convicted of offence under Section 307 of IPC for the injuries caused to the victim Suraj Singh (PW5) whereas according to Dr. SPS Raghuvanshi (PW7) the victim Suraj Singh was referred for radio-logical examination and treatment and no X-ray report etc. has been produced before the trial Court to show that the victim Suraj Singh sustained any fatal or grievous injury. If overt act of the appellants is considered, then none of them gave a forceful blow to the victim Suraj Singh. It is alleged that the appellant Lalaram Kirar assaulted for two-three times with farsa to the victim Suraj Singh, however, no such multiple injuries were found to the victim Suraj Singh. At the most, two injuries were found to the victim Suraj Singh caused by the appellant Lalaram Kirar. Since both the injuries were not on vital part of the body and given without any sufficient force, hence it cannot be said that the appellants have intended to kill the victim Suraj Singh. When victim Suraj Singh did not sustain any fatal injury which could be sufficient to cause his death and none of the appellants was interested to kill him, then no ingredient of Section 300 of IPC is attracted in the present case and, therefore, the appellants could not be convicted of offence under Section 307 of IPC. At the most, they would have convicted of offence under Section 324 of IPC in relation to the victim Suraj Singh.
(15) The appellants have tried to get a defence version that the deceased Lalaram Rawat was the assailant. It is true that the FIR Ex.D9 in the shape of Rojnamcha was proved by Head Constable 11 CRA 303/1999 Babulal (DW3) and by evidence of Dr.SK Dwivedi (DW1) MLC reports of the appellants Lalaram Kirar and Ramji were proved as Ex.D7 and Ex.D8 but the incident took place on 17/12/1997 and the FIR was lodged on 22/12/1997 and the appellants Lalaram Kirar and Ramji were examined by Dr. Dwivedi on 23/12/1997. There was no reason by the appellants as to why Lalaram Kirar could not lodge the FIR for five days and possibility cannot be ruled out that they sustained injuries due to any other reason and thereafter they tried to get the defence prepared on the basis of such injuries. Dr. SK Dwivedi (DW1) has opined that the injuries caused to the appellants No.1 and 2 Lalaram Kirar and Ramji were six days' old. He examined the victims on 23/12/1997 but by colour and nature of the injuries he could not opine the exact time period of such injuries. Those injuries could be of less than six days' old and hence, no definite defence could be proved by the appellants that they sustained the injuries in the incident. The trial Court has rightly discarded the evidence given Dr.SK Dwivedi (DW1) and Head Constable Babulal (DW3).
(16) Also, the witness Laljiram (DW2) has stated that the deceased Lalaram Rawat came to the fields of the appellants, when 25- 30 persons were working in that fields and he held the hand of the appellant Ramkunwar to take her, however, appellants Lalaram Kirar and Ramji prohibited the deceased Lalaram Rawat to take the appellant Ramkunwar and, therefore, the deceased Lalaram Rawat and victim Suraj Singh assaulted the appellants Lalaram Kirar and Ramji and the persons who were working in the fields had pelted stones upon the deceased Lalaram Rawat and the victim Suraj Singh. However, such story is not believable due to two reasons. Firstly, that if the villagers had pelted stones on the deceased Lalaram Rawat and the victim Suraj Singh then they could not sustain the injuries caused by sharp cutting or stabbing weapon. Secondly, though there was enmity between the 12 CRA 303/1999 deceased Lalaram Rawat and the appellant Lalaram Kirar relating to character of the appellant Ramkunwar but it was not possible for the deceased Lalaram Rawat to hold the hand of the appellant Ramkunwar in the presence of 25- 30 persons who were working in the fields. If he kept silence for four- five years after he was removed from his job by the appellant Lalaram Kirar then after four- five years there was no reason with the deceased Lalaram Rawat to go and try for abduction of the appellant Ramkunwar. Initially, Laljiram (DW2) has stated that the deceased Lalaram Rawat was accompanied by Suraj Singh but in the cross- examination, he has stated that no injury was caused to the victim Suraj Singh. However, he has accepted that the deceased Lalaram Rawat died due to injuries and his death was caused at the field of appellant Lalaram Kirar. Looking to the statement of Laljiram (DW2), it appears that he is a cooked witness who was not present at the spot otherwise he would have accepted that the victim Suraj Singh sustained some injuries and he would have stated about the injuries caused to the deceased Lalaram Rawat and the victim Suraj Singh. Also, due to unnatural allegation where it was not possible for the deceased Lalaram Rawat to go to the fields of the appellants and tried to abduct the appellant No.3 Ramkunwar in the broad daylight. Hence, the trial Court has rightly discarded the theory of right of private defence or allegations as made by various defence witnesses against the deceased Lalaram Rawat and the victim Suraj Singh.
(17) Under these circumstances, the appellants could not prove their defence and it is not acceptable that the deceased Lalaram Rawat was an aggressor. No right of private defence was accrued to the appellants. Hence, their plea has been rightly discarded by the trial Court. Similarly, since it was not proved beyond doubt that the appellants Lalaram Kirar and Ramji sustained injuries on the same incident, there was no need for the prosecution to give 13 CRA 303/1999 explanation of their injuries. It is true that there was enmity between the parties due to character of the appellant No.2 Ramkunwar and her relation with the deceased Lalaram Rawat and enmity is a double aged weapon. Due to enmity, a person can kill his enemy and due to that enmity one can falsely implicate his enemy and, therefore, in such case evidence of party should be considered cautiously. As discussed above, evidence given by the defence witnesses is not probable or acceptable. Allegation as made by the appellants that the deceased Lalaram Rawat had tried to abduct the appellant Ram Kunwar was absolutely not possible when 25 - 30 persons were present in the fields of the appellants and when the deceased Lalaram Rawat did not take any interest in the appellant Ramkunwar in last four- five years, when he lost his job from the house of appellant Lalaram Kirar, then there was no need or reason before the deceased Lalaram Rawat so that he would have done such an activity after 4-5 years. Hence, it is not a case where the appellants are falsely implicated in the matter due to enmity. Evidence of eye- witnesses is duly corroborated by medical evidence and the FIR Ex.P6.
(18) The trial Court has convicted all the appellants of offence under Section 302 of IPC. However, the overt act of each appellant should be considered separately. In the present case, the appellants did not know that the deceased Lalaram Rawat would pass near their fields on that particular day and they were simply reaping the crops of groundnut along-with labourers and, therefore, incident was not pre-planned. Hence, the intention of each of the appellants should be considered according to their individual overt act. In the present case, the appellant Lalaram Kirar assaulted the deceased forcefully with sharp cutting weapon on his vital part of the body and ultimately he died and, therefore, his intention is visible that he wanted to kill the deceased Lalaram 14 CRA 303/1999 Rawat. Hence, the trial Court has rightly convicted appellant No.1 Lalaram Kirar for the offence under Section 302 of IPC.
(19) So far as the act of the appellant Ramkunwar is concerned, according to the eye-witnesses she gave a powerless blow of sickle on the neck of the deceased Lalaram Rawat and thereafter she did not repeat the assault. Hence, looking to the overt act of appellant Ramkunwar she was not interested to kill the deceased Lalaram Rawat. Hence, her overt act falls within the purview of Section 324 of IPC and no common intention of the appellant Ramkunwar is proved to convict her for the offence under Section 302 read with Section 34 of IPC but the trial Court has committed an error in convicting the appellant No.3 Ramkunwar for the offence under Section 302 with the help of Section 34 of IPC.
(20) Similarly, it is alleged against the appellant Ramji that he assaulted the deceased Lalaram Rawat with a ballam which was a stabbing object. However, no injury was found to the deceased Lalaram Rawat caused by any stabbing weapon but it was found that he caused some injuries to the deceased Lalaram Rawat with blunt portion i.e. the portion of iron rod of that ballam and though he assaulted for three- four times but it had not caused any grave injury to the deceased Lalaram Rawat.Dr.SK Majeji (PW8) did not opine that below the contusions found on the body of deceased Lalaram Rawat, any fracture was found of any bone and, therefore, no fatal injury was caused by the appellant Ramji and if he had a ballam he could pierce that ballam on the vital part of the body of the deceased Lalaram Rawat and could damage heart, lungs or any other vital part of the body by piercing of ballam. Hence, looking to the overt act of the appellant Ramji, it cannot be said that either he intended to kill the deceased Lalaram Rawat or he caused any fatal injury to the deceased Lalaram Rawat. Hence, his common intention cannot be presumed with the appellant No.1 Lalaram Kirar. His offence falls, at the most, within the purview of 15 CRA 303/1999 Section 324 of IPC. The trial Court has committed an error in convicting the appellant Ramji for the offence under Section 302 read with Section 34 of IPC.
(21) So far as the sentence is concerned, the trial Court has recorded a minimum sentence which is prescribed for offence under Section 302 of IPC for the appellant No.1 and, therefore, no further dilution can be done in that sentence. However, at present, the appellants are held liable for offence under Section 324 of IPC for the victim Suraj Singh and also, the appellants No.2 and 3 shall be liable for offence under Section 324 of IPC relating to the deceased Lalaram Rawat. They have faced the trial and appeal for approximately 19 years. The appellants Lalaram Kirar and Ramji remained in custody during the pendency of the trial for 541 days whereas appellant Ramkunwar remained in custody for 20 days. Also, after pronouncement of the judgment by the trial Court on 16/06/1999, the appellant Ramji remained in custody upto 14/10/1999 and, therefore, he remained in custody for approximately four months again. Similarly, the appellant Ramkunwar was released on bail vide order dated 31/03/2000 and, therefore, she remained in the custody during appeal for approximately 9 months. The appellant Lalaram Kirar was also released on bail vide order dated 28/01/2000 and, therefore, he remained in custody for approximately 7 months during the appeal. Hence, all the appellants have undergone for appropriate sentence which could be sufficient for offence under Section 324 of IPC and if sentences are to run concurrently for two count charges of Section 324 of IPC then it would be appropriate to impose the jail sentence upon the appellants for two count charges of Section 324 of IPC for the period in which they remained in custody.
(22) On the basis of aforesaid discussion, the appeal filed by the appellants is hereby partly allowed. The conviction and sentence of the appellants Ramji and Ramkunwar for offence under 16 CRA 303/1999 Sections 302 and 307 of IPC are hereby set aside. Under the same head of charges, both of them are convicted upto two count charges under Section 324 read with Section 34 of IPC and they are sentenced with jail sentence equivalent to the period for which they remained in custody. However, the fine of Rs.1500/- is imposed for each count charge under Section 324 read with Section 34 of IPC. Since such fine amount has already been deposited by appellants Ramji and Ramkunwar, there is no need to make provision for default sentence. The appeal filed by the appellant Lalaram Kirar is partly allowed. His conviction and sentence of offence under Section 302 read with Section 34 of IPC is maintained but his conviction and sentence of offence under Section 307 of IPC are set aside. He is acquitted from the said charge. However, under the same head of charge, he is convicted of offence under Section 324 of IPC and sentenced to imprisonment for the period equivalent to the period in which he remained in custody. Fine of Rs.1,000/- is also imposed for offence under Section 324 of IPC.
(23) The appellants are on bail and, therefore, the appellant Lalaram Kirar is directed to surrender immediately before the trial Court so that he shall be sent for execution of his remaining part of jail sentence whereas bail bonds of remaining appellants shall stand discharged.
(24) A copy of this judgment be sent to the Court below for information and compliance.
(N. K. Gupta) (S.K.Awasthi)
Judge Judge
20 /04/2017 20/04/2017
MKB