Rajasthan High Court - Jaipur
Sumartha vs State Of Rasjasthan on 2 November, 2017
Author: G R Moolchandani
Bench: G R Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Criminal Appeal No. 62 / 1989
Sumartha & Anr.
----Appellant
Versus
State Of Rasjasthan
----Respondent
Connected With D.B. Criminal Appeal No. 63 / 1989 Harsi @ Harsahay & Ors.
----Appellant Versus State
----Respondent _____________________________________________________ For Appellant(s) : Mr. Mohar Pal Meena on behalf of Mr. Rajeev Surana for the appellants in Appeal No.62/1989 Ms. Gayatri Rathore for the appellants in Appeal No.63/1989 For Respondent(s) : Mr. RS Shekhawat PP Mr. Mohit Balwada on behalf of Mr. Praveen Balwada for the complainant.
_____________________________________________________ HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON'BLE MR. JUSTICE G R MOOLCHANDANI Judgment 06/10/2017 Per: Kanwaljit Singh Ahluwalia,J. (ORAL) Seventeen persons namely Sumartha, Radha Kishan, Harsi @ Har Sahai, Sanwaliya, Chimman, Dhansi, Kailash, Girdhari, Chhota, Ramparsiya @ Ram Prasad, Ramji Lal, (2 of 13) [ CRLA-62/1989] Dharmchand @ Dharmi, Ram Khiladi, Ramnath, Bhola, Ram Singh and Harphool were sent for trial in case arising out of FIR No.93/85 dated 6.8.1985 registered at Police Station Laxmangarh, Alwar for the offences under Sections 302, 307, 323, 324, 147, 148 and 149 IPC. In the occurrence, Chhotiya died due to injuries caused and Muniram (P.W.2) and Resham (P.W.1) also suffered injuries in the occurrence. It may be highlighted here that one of the accused namely Sumartha who had given fatal blow with spade on the head of deceased Chhotiya also suffered injuries in the occurrence.
The case of the prosecution has emerged in the statement (Exhibit-P/1), made by Muniram (P.W.2) on the basis of which a formal FIR (Exhibit-P/38) bearing No.93/1985 was registered. The statement made by Muniram (P.W.2) leading to registration of FIR (Exhibit-P/38), when translated into English reads as under:-
"Statement of Muniram son of Bhagwana, by caste Meena, resident of Police Station Laxmangarh, aged 18 years.
Today on 5.8.1985, at about 6:00 PM, I and my Kaka (Uncle) Chhotiya and Resham had gone to visit Bada Wala field. When we reached there, we saw that Chimman was raising a Dol (Ridge) which adjoins our field. Harsi, Radha Kishan, Dhansi, Chimman, Kailash, Sumartha and Sanwala Meena were raising a boundary wall with earth and they were taking earth from the field cultivated by us. My Kaka Chhotiya objected as to why they are taking earth from our field and thereby making a pit in our field.
My uncle said if the pit is made in his field, passers by will damage the crop. At that stage, Sumartha caused a (3 of 13) [ CRLA-62/1989] spade blow on the head of Chhotiya. Others also caused injuries to Chhotiya with lathis and Farsis. We came forward to save him. Then all caused injuries to me and Resham. Chhotiya fell at the spot and died. Sumartha caused spade blow on the head of Resham. Others caused Resham injuries with lathis. Meanwhile, Bhola, Chhota, Ramnath, Dharmi, Ram Khiladi, Harphool, Ram Singh, Girdhari, Ramji Lal and Ram Parsiya etc came armed with lathis. They encircled us and had not permitted us to run away from the spot by saving our lives. Harsi caused two lathi blows on my right hand, Radha Kishan caused three lathi blows on my left hand. They also caused injuries on my both feet. The occurrence has been witnessed by Nahar Singh, Bhagwana, Kailash and Ramphool. Resham also became unconscious at the spot. The above said persons carried my father from the spot. Chhotiya died at the spot. The above said persons were already having a grudge against us."
From the above statement (Exhibit-P/1), on the basis of which formal FIR (Exhibit-P/38) was registered, reveals that the occurrence had taken place in two parts. In the first part of the occurrence, Sumartha, Sanwaliya, Harsi @ Har Sahay, Radha Kishan, Kailash, Dhansi and Chimman had participated. Remaining accused Bhola, Chhota, Ramnath, Dharmi, Ram Khiladi, Harphool, Ram Singh, Girdhari, Ramji Lal and Ram Parsiya arrived at the spot after the fatal blow was caused. Only allegation qua them is they encircled injured and had not permitted them to run away from the spot.
The trial Judge vide impugned judgment dated 17.1.1989 acquitted accused no. 8 to 17, however, the trial Judge held Sumartha, Harsi @ Har Sahai, Radha Kishan, Dhansi, (4 of 13) [ CRLA-62/1989] Chimman, Kailash and Sanwaliya guilty of offence under Section 302/149 IPC. The trial Judge also held Sumartha guilty of offence under Section 307 IPC having caused spade blow on the head of Resham (P.W.1). The trial Judge substantively convicted Harsi @ Har Sahai and Radha Kishan for offence under Section 325 IPC, whereas Dhansi, Kailash and Sanwaliya were substantively convicted for the offence under Section 323 IPC. We may notice here that for the offence under Section 307 IPC, Harsi @ Har Sahai, Radha Kishan, Dhansi, Chimman, Kailash and Sanwaliya were convicted with the aid of Section 149 IPC.
Having convicted the accused for the above said offences, the trial Judge vide a separate order of even date, sentenced them as under:-
U/s. 302/149 IPC- to undergo life imprisonment and to pay a fine of Rs.250/- each, in default of payment of fine to undergo additional three months RI.
U/s. 307 and 307/149 IPC- to undergo five years RI and to pay a fine of Rs.500/- each, in default of payment of fine to undergo additional six months RI.
U/s. 325 IPC - to undergo two years RI and to pay a fine of Rs.250/- each, in default of payment of fine to undergo additional three months RI.
U/s. 323 IPC- to undergo three months RI each.
All the sentences were ordered to run concurrently.
(5 of 13) [ CRLA-62/1989] Aggrieved against their conviction and sentence, Sumartha and Sanwaliya have preferred DB Criminal Appeal No.62/1989, whereas remaining five accused namely Harsi @ Har Sahay, Radha Kishan, Kailash, Dhansi and Chimman have instituted DB Criminal Appeal No.63/1989. A Division Bench of this Court, while admitting the appeals ordered that both the appeals shall be heard together, hence, we shall decide both these appeals by this common judgment as in both the appeals, same impugned judgment has been assailed.
As per prosecution case, deceased Chhotiya had died at the spot. Dr. Prabhu Dayal Saini (P.W.12) on 6.8.1985 at 10:00 AM had conducted autopsy on the dead body of Chhotiya and in the Post Mortem Report (Exhibit-P/20), he noted twelve injuries. Besides three internal injuries which included fracture of right parietal bone, tearing of membrances and laceration of brain beneath right parietal bone. Dr. Prabhu Dayal Saini (P.W.12) proved post mortem report as Exhibit-P/20.
Resham (P.W.1) was examined by Dr. P.S. Agarwal (P.W.10) and vide injury report Exhibit-P/10, he had noted four injuries on the person of Resham. Injury no.1 was incised wound on the right parietal region, injury no.2 was lacerated wound on the frontal portion of the head, leading to bleeding from nose, injury no.3 was contusion on the left arm and injury no.4 was swelling on the left maxilla. Injury No.1 was declared grievous.
Muniram (P.W.2) was medico-legally examined by Dr. Prabhu Dayal Saini (P.W.12). Dr. Prabhu Dayal Saini (P.W.12) in (6 of 13) [ CRLA-62/1989] injury report Exhibit-P/19 noted nine injuries on the person of Muniram. After opinion of the Radiologist (Exhibit-P/18), injuries nos. 5 and 7 on the person of Muniram (P.W.2) were declared grievous.
It is undeniable fact that Sumartha was also examined on 6.8.1985 at 5:30 PM by Dr. P.S. Agarwal (P.W.10) and in the injury report (Exhibit-P/12), four injuries have been noted on the person of Sumartha. Injury no.1 is lacerated wound having dimension of 4cm x 2cm, muscle deep, on the forehead, injury no.2 is bruise on the left side back on lower ribs laterally and injury no.3 was complain of pain on right side of chest, injury no.4 was complain of pain of both shoulder and scapula region. Dr. P.S. Agarwal (P.W.10) found veins beneath the injuries to be tender.
Mr. Mohit Balwada, the learned counsel for the complainant has very fairly submitted that Resham (P.W.1) and Muniram (P.W.2) both injured witnesses have reiterated the version given by Muniram (P.W.2) in statement (Exhibit-P/1) leading to registration of FIR, with little variation here and there. It is further submitted that both the injured witnesses have been fully corroborated by Bhagwana (P.W.3) father of Muniram and Nahar Singh (P.W.6). It is not denied that Kailash (P.W.5) and Ramphool (P.W.14) who were cited as eyewitnesses have turned hostile and have not supported the prosecution.
We have heard the learned counsel for the parties. The case before us is in very narrow compass. Though it is stated that accused were having previous grudge with the (7 of 13) [ CRLA-62/1989] complainant party, but no history of previous litigation or inimical relations have been divulged by the witnesses. No document has been produced on the record from which it could be inferred that the parties were in litigation or have filed complaint against each other.
The case of the prosecution is simple that in evening of 5.8.1985, Chhotiya accompanied by Resham (P.W.1) and Muniram (P.W.2) had visited their Bada Wala field for inspection. When they reached there, they saw that accused were digging their field and had caused pit. The accused after digging field, raised a boundary wall. Admittedly field of both accused and complainant adjoin each other and are divided by a common ridge. We are conscious that had Chhotiya, Resham (P.W.1) and Muniram (P.W.2) not visited their fields, no occurrence would have taken place.
The learned counsel for the appellants has submitted that when the complainant party saw that accused were digging their land, they ought to have complained to the public authority or police against the conduct of the accused and ought not to have taken law in their hand.
To counter, the learned counsel for the complainant, counsel for the appellants have submitted that digging the field of complainant by causing pit amounted to mischief punishable under Section 427 IPC, as defined under Section 425 IPC and the complainant party was entitled to raise a protest.
Admittedly, none of the witness as per the learned counsel for the complainant has explained injuries on the person (8 of 13) [ CRLA-62/1989] of accused Sumartha. From the duration of the examination of the injuries of Sumartha, we can safely say that Sumartha has suffered injuries in the same occurrence.
Admittedly, the prosecution has suppressed the origin and genesis of the occurrence. In all probabilities, from the case of prosecution, when Chhotiya objected as to why accused are causing pit in his field, tampers ran high. We can well assume that at this stage, hot words were exchanged and altercation had ensued leading to verbal duel. In the heat of passion, Sumartha was also caused injuries. Who opened attack both defence and the prosecution have not come forward to the court with clean hands. Thus, to us, it is a case of sudden fight, where accused party became better of the complainant party and had caused more harm to the complainant party causing numerous injuries to Chhotiya deceased, Resham (P.W.1) and Muniram (P.W.2).
We cannot ignore that the complainant party consisted of three persons whereas accused were seven in number. Where the occurrence is sudden fight or leading to sudden fight, as per Explanation to exception 4 to Section 300 IPC, it is immaterial as to which party offered the provocation or committed first assault. We cannot also say that in case first injury was caused to Sumartha and provocation was given by the complainant party, the accused party has taken an undue advantage or had acted in cruel or unusual manner. Exception 4 to Section 300 IPC reads as under:-
(9 of 13) [ CRLA-62/1989] 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.
Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault.
Thus, we are convinced that it is a case of sudden fight, where in all probability first blow was caused to Sumartha when tampers ran high. Since we cannot say with certainty that first blow was caused to Sumartha, we having taken a conscious and safe route to hold that it was a case of sudden fight falling within Exception 4 to Section 300 IPC, as both the prosecution and the defence have not approached the court with clean hands.
Consequently, we set aside the conviction of the appellants for the offence under Section 302/149 IPC along with sentence of life imprisonment awarded by the trial court.
Having held that it is a case of sudden fight, we have to examine as to how each accused is to be convicted.
It was held by the Hon'ble Supreme Court in the case of Jumman & Ors. vs. State of Punjab [AIR 1957 SC 469] as under:-
"(24). In such a case where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, would it be correct to assume private defence for both sides? We are of the view that such a situation does not permit of (10 of 13) [ CRLA-62/1989] the plea of private defence on either side and would be a case of sudden fight and conflict and has to be dealt with under S.300, I.P.C., Exception 4.
(25). The matter has to be viewed in this way. It is clear that there was no pre-meditation and therefore when the contending factions met accidentally and attacked each other, the conflict resulted in a sudden fight, in the heat of passions, upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner. On the finding that both the parties had arms, there was no undue advantage taken by either. Hence Exception 4 to S.300, I.P.C., applies with the result that the offence is under S.304 (Part I), I.P.C."
A Division Bench of this Court in Buddhi & Ors. vs. State of Rajasthan [2007 (1) RCC 228], relying upon Dharman v. State of Punjab [ AIR 1957 SC 324] held as under:-
"13. Coming to the incident that occurred with deceased Saltu we find that he sustained injuries in the course of sudden fight ensued in the field of accused party. The complainant party was also armed with deadly weapons and as many as eight accused persons received lacerated and incised wounds on the vital parts. In Dharman vs. State of Punjab, AIR 1957 SC 324 the Supreme Court held that when two such contending parties, each armed with sharp edged weapons, clashed and in the course of a free fight some injuries were inflicted on one party or the other, it cannot be said that either of them acted in a cruel or unusual manner and that the case against the accused falls within Exception 4 of Section 300 of the Indian Penal Code and the (11 of 13) [ CRLA-62/1989] accused who caused the injury was guilty under Part I of Section 304 and not under Section 302 of the Indian Penal Code."
In the light of above judgments, we hold that Sumartha is individually liable for the offence under Section 304 Part-I IPC. We also maintain his substantive conviction for the offence under Section 307 IPC as recorded by the trial court. Harsi @ Har Sahay and Radha Kishan are held guilty of offence under Section 325, whereas all accused are held guilty of offence under Section 323 IPC.
By our order dated 7.9.2017, we have already dismissed the appeal D.B. Criminal Appeal No. 62/1989 preferred by Sanwaliya appellant no.2 as having abated. Similarly we have also dismissed D.B. Criminal Appeal No.63/1989 qua Dhansi appellant no.4 as having abated.
As a result of above discussion, Sumartha due to alteration of offence is convicted for the offences under Sections 304 Part-I and Section 307 IPC. Harsi @ Har Sahay and Radha Kishan are held substantively guilty of offence under Section 325 IPC. All the appellants namely Sumartha, Harsi @ Har Sahay, Radha Kishan, Kailash and Chimman are also held guilty of offence under Section 323 IPC.
In the present case, the occurrence had taken place in the year 1985, thirty two years ago. It is well settled legal position that appeal is continuation of the trial and appellants have suffered a protracted trial for more than three decades. The (12 of 13) [ CRLA-62/1989] assertion made by the learned counsel for the appellants that appellants have not committed any offence earlier to the registration of the present case, and thereafter, has gone unchallenged. Thus, antecedents of the appellants are above board.
Taking into consideration the sufferance of protracted trial, especially the occurrence took thirty two years ago, age of the appellants, their antecedents, we are of the view that sentence of seven or ten years, which we ordinary award for the offence under Section 304 Part-I IPC, is not called for. Hence, we sentence the appellant Sumartha for the offence under Section 304 Part-I IPC to four years RI and to pay a fine of Rs.30,000/-, in default of payment of fine to further undergo one year RI.
We also reduce the sentence for substantive conviction under offence under Section 307 IPC upon Sumartha from five years to three years, along with a fine of Rs.10,000/-, in default of payment of fine, he shall undergo additional six months RI.
So far appellant Harsi @ Har Sahay and Radha Kishan for offence under Section 325 IPC are concerned, they were sentenced to two years RI. We reduce their sentence from two years RI to nine months RI. We also award fine of Rs.10,000/- upon Harsi @ Har Sahay and Radha Kishan, and in default of payment of fine, they shall undergo additional four months RI.
We reduce the sentence to already undergone upon Sumartha, Harsi @ Har Sahay, Radha Kishan, Kailash and Chimman for offence under Section 323 IPC. Sentence awarded (13 of 13) [ CRLA-62/1989] upon Sumartha on various counts shall run concurrently. Similarly sentence awarded upon Harsi @ Har Sahay and Radha Kishan on two counts shall run concurrently.
The amount of fine after realization shall be disbursed to the legal heirs of the deceased Chhotiya. We are also conscious that family of deceased Chhotiya has also suffered immensely due to delay in decision of the present appeals. Hence, we hold legal heirs of deceased Chhotiya entitled to compensation under the Rajasthan Victim Compensation Scheme formulated under Section 357-A Cr.P.C. over and above the sentence of fine which is to be disbursed to the family members of deceased Chhotiya. We direct Secretary, Rajasthan Legal Services Authority, Jaipur to pay amount of compensation to the legal heirs of deceased Chhotiya under the Rajasthan Victim Compensation Scheme.
We direct the trial court to issue warrant of arrest for taking accused appellants into custody to undergo remaining sentence as the sentence upon the appellants was suspended shortly after the admission of the appeals.
Copy of this judgment alongwith record be sent to the trial court forthwith. Copy of this judgment for compliance be also sent to Secretary, Rajasthan Legal Services Authority, Jaipur. (G R MOOLCHANDANI)J. (KANWALJIT SINGH AHLUWALIA)J. Mak/-