Rajasthan High Court - Jodhpur
Kika Ram And Anr vs State on 6 May, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 334/1993
Kika Ram And Anr.
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. Shreekant Verma
For Respondent(s) : Mr. Mukhtiyar Khan, P.P.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 06/05/2022
1. In the wake of instant surge in COVID - 19 cases and spread of its highly infectious Omicron variant,abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.
2. This Criminal Appeal under Section 374 Cr.P.C. has been preferred with the following prayer:-
"It is, therefore, respectfully prayed that this appeal may kindly be allowed and the accused appellant may be acquitted of all the charges leveled against them."
3. At the outset, learned counsel for the appellants submits that the appeal against appellant no. 2, Peera Ram, stands abated, as on 05.02.2020, and that the above prayed for reliefs be granted to the appellant no. 1, Kika Ram.
4. Learned counsel for the appellant submits that the present criminal appeal has been against the judgment, dated 30.08.1993, (Downloaded on 07/05/2022 at 08:25:15 PM) (2 of 12) [CRLA-334/1993] passed by the learned Sessions Judge, Pali, in Sessions Case No. 123/1990 by which the appellant was convicted for offences under Section 304 Part II I.P.C. and was awarded a sentence of 5 years R.I.
5. Learned counsel for the appellant submits that an F.I.R. was lodged by complainant Moti S/o Bhuta Meghwal, at Police Station Guda Endla on 16.08.1990 at 09:15 a.m. stating therein that at about 07:30 a.m., while Moti was home, one Smt. Gajra W/o Poona came and informed that whilst her husband had gone to relieve himself in the morning, Peera and Lala @ Vora armed with lathis and Kika armed with 'Dhariya' followed him. It was further stated that Peera's family and their family had a long standing feud, and that on the day of he incident in question they threatened his life and began to assault him with the aforementioned weapons, and that when her husband began wailing and screaming, the villagers rushed to the scene and found her husband lying on the ground, with his hands bleeding. Subsequently, when the investigation was launched against the accused persons, and charges were framed against hem under Sections 323 and 341 I.P.C. but since the victim-husband, passed away during said investigation, the charges against the accused were modified to the offence under Section 302 I.P.C. Subsequently, when the case was tried by the learned Sessions Court, the appellants, Peera Ram and Kika Ram were convicted under Section 304 Part II I.P.C. while the other accused, Lala @ Vora was acquitted from all charges levelled against him. 5.1 Learned counsel further submits that the F.I.R. against the accused was recorded after a considerable delay and that it was (Downloaded on 07/05/2022 at 08:25:16 PM) (3 of 12) [CRLA-334/1993] filed only after visiting the site where the incident in question took place, and that this calls into question the veracity of the F.I.R. And that furthermore, although the eye witnesses were examined before the F.I.R. was registered, they were not named in the F.I.R. and this also casts doubt on the version of the prosecution. 5.2 Learned counsel also submits that the alleged statement given by deceased-victim, Poona Ram, under Section 161 Cr.P.C. was taken to be a dying declaration, but that, the same was not accompanied by any note of the doctor stating that the now deceased-victim, at that time was in a fit condition to give the said statement, and moreover, the same was not signed by him. 5.3 Learned counsel further submits that the learned Trial Court, on the same set of evidences, has disbelieved the witnessess in respect of the charges levelled against Vora, and acquitted him of all the charges leveled against him.
5.4 Learned counsel also submits that this, therefore, calls into question the entire version of the prosecution and that the same was given due weightage by the learned Court below, and therefore, the impugned order deserves to be quashed and set aside, as it suffers from a misreading of evidence. 5.5 Learned counsel further submits that the appellant has remained in custody for a period of about 3 months and 17 days, and that this Hon'ble Court, vide its order dated 27.09.1993 in S.B. Criminal Misc. Bail No. 332/1993 has suspended the sentence of the appellant, and he is on bail.
6. Learned counsel for the appellant however, makes a limited submission that if this Court does not deem it a case fit for acquittal, then without making any interference on (Downloaded on 07/05/2022 at 08:25:16 PM) (4 of 12) [CRLA-334/1993] merits/conviction, the sentence awarded to the present appellant may be substituted with the period of sentence already undergone by him.
7. Learned counsel placed reliance on the following judgments rendered by this Hon'ble Court in;
7.1 Dev Raj Vs. State of Rajasthan S.B. Criminal Appeal No. 269/1991 decided on 07.04.2015 wherein the following observations were made:-
"16. Upon perusal of above statement it is abundantly clear that although there is allegation of inflicting injury by the accused appellant Dev Raj upon the head of Hansraj, but none of the witness said that injury was inflicted by the accused appellant Dev Raj from the back side of Gandasi, whereas PW- 1-Khuba Ram sated before the Court that injury was inflicted by the accused appellant from the back side of Gandasi upon his leg and due to that injury fracture was caused upon his leg.
18. Upon perusal of the above statement I am of the opinion that although prosecution has proved the fact that incident took palce in 7.11.1990 at 8:30 P.M. in front of Chhabara Flour Mill, Sri Gaganagar, but prosecution has failed to prove the allegation that injury which is found upon the head of deceased Hansraj was caused by the sharp edged weapon Gandasi which accused appellant was having at the time of occurrence. The weapon Gandasi is sharp edged weapon but the injury which is cause of death of deceased Hansraj upon the body was caused by blunt weapon and none of the injury found upon the body was caused by blunt weapon and none of the injury found upon the body of the deceased were incised wound, therefore, in my opinion, the benefit of doubt goes in favour of the accused appellant because sharp edged weapon Gandasi was recovered from him and the injury upon the head of deceased Hansarj was alleged to be caused by blunt weapon.(Downloaded on 07/05/2022 at 08:25:16 PM)
(5 of 12) [CRLA-334/1993]
19. In view of the above, the conviction of accused appellant for offence under Section 304 Part-II I.P.C. is not sustainable in law because it has not been proved beyond doubt. The allegation of inflicting injury upon the body of PW-1-Khuba Ram from back side of Gandasi, which resulted into fracture, is proved, therrefore, the learned Trial Court has rightly held accused guilty for offence under Section 325 I.P.C, therefore, the finding of the learned Trial Court for convicting the accused appellant for offence under Section 325 I.P.C. does nto require any interference, but findings for offence under Section 304 Part-II I.P.C. deserves to be quashed."
7.2 Badri Vs. The State of Rajasthan D.B. Criminal Appeal No. 426/1982 decided on 18.05.2010 wherein the following observations were made:-
"31. From the analysis of the prosecution evidence, it is clearly borne out that accused and complaint both were cousin and living in the same house. There was no previous enmity among them, no motive to commit murder of deceased. The incident took place all of sudden on a petty matter. There was allegations of five injuries on the person of deceased by accused persons, but the same was not corroborated by Injury Report Exhibit P-7 as well as Post Mortem Report Exhibit P-12. The deceased sustained only two injuries, out of which one injury was found to be fatal, but from the statements of P.W. 1 to P.W. 3 it is not proved as to which one of the accused-persons inflicted the said fatal injury on the head of deceased. As such, none of the accused can be held to be personally liable for the fatal injury. The liability can only be vicarious under Section 34 IPC and as such we have to find out as to what was the common intention of the accused persons in furtherance of which they caused injuries to Bajranga. From the prosecution evidence as discussed above we find that the common intention of the accused was to cause grievous and simple injuries to the victim. In these circumstances, we are of the view that learned (Downloaded on 07/05/2022 at 08:25:16 PM) (6 of 12) [CRLA-334/1993] trial court was right in acquitting the accused persons of the charges under Section 302 and 302/34 IPC, but committed an illegality in convicting the accused Badri alone for the offence under Section 304 Part II IPC. As it is not possible on the material on record to find out as to which one of the accused gave the fatal blow and which one gave the simple injury, in our view each one of the four accused can only be guilty of the offence under Section 325/34 IPC and 323/34 IPC.
32. In these circumstances, we are of the view that each of the four accused persons are liable to be convicted under Section 325 read with Section 34 IPC and also under Section 323 read with Section 34 IPC.
33. It is relevant to mention that during the pendency of these appeals, accused persons namely Choga S/o Gopal and Fatha S/o Bhura both died and State appeal against them stood abated. As far as remaining two accused persons namely Badri and Kajod are concerned, it is clear from the record that accused Badri has remained in custody for 3 months and 17 days and accused Kajod has remained in custody for 5 months and 1 day. The incident took place in the year 1982 and 28 years have elapsed thereafter. The accused persons have settled in their village with their families. In these circumstances, in our view the ends of justice will meet in case they are convicted and sentenced under Section 325 read with Section 34 IPC as well as under Section 323 read with Section 34 IPC to a period of sentence of imprisonment already undergone by them.
34. Consequently, appeal of accused Badri is allowed. His conviction and sentence under Section 304 Part II IPC passed by learned trial court is set aside.
35. The State appeal is partly allowed and accused respondents namely (1) Badri S/o Putha and (2) Kajod S/o Putha are convicted and sentenced under Section 325 read with Section 34 IPC as well as under Section 323 read with Section 34 IPC to a period of imprisonment already undergone by them. Accused Badri is on bail. His bail bonds are cancelled and he need not surrender."(Downloaded on 07/05/2022 at 08:25:16 PM)
(7 of 12) [CRLA-334/1993]
8. On the other hand, learned Public Prosecutor opposes the appeal and submits that the learned Court below has passed hte impugned order only after taking into due consideration the overall facts and circumstances of the case and thereafter, has passed a well reasoned speaking order, and that therefore, the accused-appellant is not entitled for any indulgence by this Court.
9. This Court keeps into consideration the following judgments rendered by the Hon'ble Apex Court in:-
9.1 Amit Kapoor Vs. Ramesh Chander and Ors. (2012) 9 SCC 460 wherein the Hon'ble Apex Court, with regard to the exercise of a High Court's inherent powers under Section 482 Cr.P.C, observed asunder:
"The jurisdiction of the Court under Section 397 can be exercised so as to examine the correctness, legality or proprietary of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression 'prevent abuse of process of any court or otherwise to secure the ends of justice', the jurisdiction under Section 397 is a very limited one. The legality, proprietary or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex liquid alicuiconcedit, conceder videtur id quo res ipsa esse non protest, i.e., when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The Section confers very wide power on the Court to do justice and to ensure that the process of the Court is not permitted to be abused.(Downloaded on 07/05/2022 at 08:25:16 PM)
(8 of 12) [CRLA-334/1993] It may be somewhat necessary to have a comparative examination of the powers exercisable by the Court under these two provisions. There may be some overlapping between these two powers because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent power under Section 482 of the Code being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of the Code. To put it simply, normally the court may not invoke its power under Section 482 of the Code where a party could have availed of the remedy available under Section 397 of the Code itself. The inherent powers under Section 482 of the Code are of a wide magnitude and are not as limited as the power under Section 397. Section 482 can be invoked where the order in question is neither an interlocutory order within the meaning of Section 397(2) nor a final order in the strict sense. Reference in this regard can be made to Raj Kapoor and Ors. v. State of Punjab and Ors. MANU/SC/0210/1979 : AIR 1980 SC 258 : (1980) 1 SCC 43]}. In this very case, this Court has observed that inherent power under Section 482 may not be exercised if the bar under Sections 397(2) and 397(3) applies, except in extraordinary situations, to prevent abuse of the process of the Court. This itself shows the fine distinction between the powers exercisable by the Court under these two provisions. In this very case, the Court also considered as to whether the inherent powers of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. Rejecting the argument, the Court said that the opening words of Section 482 contradict this contention because nothing in the Code, not even Section 397, can affect the amplitude of the inherent powers preserved in so many terms by the language of Section 482. There is no total ban on the exercise of inherent powers where abuse of the process of the Court or any other extraordinary situation invites the court's jurisdiction. The limitation is self-restraint, nothing more. The distinction between a final and interlocutory order is well known in law. The orders which will (Downloaded on 07/05/2022 at 08:25:16 PM) (9 of 12) [CRLA-334/1993] be free from the bar of Section 397(2) would be the orders which are not purely interlocutory but, at the same time, are less than a final disposal. They should be the orders which do determine some right and still are not finally rendering the Court functus officio of the lis. The provisions of Section 482 are pervasive. It should not subvert legal interdicts written into the same Code but, however, inherent powers of the Court unquestionably have to be read and construed as free of restriction."
10. Looking into the medical record of the case, this Court finds that the nature of injury created a doubt as to whether there was any intention of causing death, or causing attempt to murder.
11. This Court further observes that the learned Trial Court, has seriously erred on the law, in framing charges under Sections 323 and 341 I.P.C., as is it not only evident from the evidences placed on record, that the accused at the time were armed with dangerous weapons, i.e. lathis and 'dhariya' and therefore prima facie the charges should have been framed under Sections 326 and 341 I.P.C.
The above mentioned sections have been reproduced herein under:-
"323. Punishment for voluntarily causing hurt.-- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
326. Voluntarily causing grievous hurt by dangerous weapons or means.--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any (Downloaded on 07/05/2022 at 08:25:16 PM) (10 of 12) [CRLA-334/1993] heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
341. Punishment for wrongful restraint.--Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both."
12. This Court finds that, as is apparent from the face of the record, the statement of the deceased-victim, recorded under Section 161 Cr.P.C. and subsequently taken to be a dying declaration was recorded under suspicious circumstances, the doctor has not corroborated that the victim at the time was in a position to tender a statement, moreover the same has not been signed by the victim, as required under law.
13. The learned trial court, while establishing the making out of the offence under Section 304 Part II IPC was unable to balance the applicability of Section 323 IPC vis-a-vis Section 304 Part II IPC.
14. This Court, therefore, in light of the above made observations, finds that the benefit of doubt arising out of such imbalance has to go to the accused, and thus, while interfering in the impugned judgment, this Court deems it appropriate to replace the conviction under Section 304 Part II I.P.C. with Sections 326 and 341 IPC.
15. Moreover, the testimonies of the eye witnesses' and veracity of the F.I.R. are called into question, since the eye witnesses (Downloaded on 07/05/2022 at 08:25:16 PM) (11 of 12) [CRLA-334/1993] although examined, were not named in the F.I.R. and the delay in lodging the F.I.R. and the circumstances under which it was lodged cast aspersions on the version of the prosecution. 15.1 Furthermore, the learned Trial Court, has on the basis of the same evidences on record before it, acquitted the similarly situated accused, i.e. Lala @ Vora while convicting the accused Kika Ram and Peera Ram (against whom the current appeal stands abated).
16. This Court also takes into consideration the precedent laws cited on behalf of the learned counsel for the appellant in Dev Raj (supra) and Badri (supra) wherein this Hon'ble Court obseved that the conviction under Section 304 Part II I.P.C. shall be sustainable only if proven beyond reasonable doubt, and after taking into due consideration the overall facts and circumstanes of the case, this Hon'ble Court, in Dev Raj (supra) acquitted the accused, whereas in Badri (supra) reduced the sentence awarded to the accused to the period of sentence already undergone by him.
17. This Court is conscious of the judgments rendered in, Alister Anthony Pareira Vs. State of Maharashtra (2012) 2 SCC 648 and Haripada Das Vs. State of W.B. (1998) 9 SCC 678 wherein the Hon'ble Apex Court observed as under:-
Alister Anthony Pareira (Supra) "There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances."(Downloaded on 07/05/2022 at 08:25:16 PM)
(12 of 12) [CRLA-334/1993]
Haripada Das (Supra)
"...considering the fact that the respondent had already undergone detention for some period and the case is pending for a pretty long time for which he had suffered both financial hardship and mental agony and also considering the fact that he had been released on bail as far back as on 17-1-1986, we feel that the ends of justice will be met in the facts of the case if the sentence is reduced to the period already undergone..."
18. In light of the limited prayer made on behalf of the appellant, and keeping in mind the aforementioned precedent laws, the present appeal, where the conviction already has been scaled down from Section 304 Part II I.P.C. to Sections 326 and 341 I.P.C., is further interfered with, and the appeal is partly allowed.
Accordingly, while maintaining appellant's conviction under Sections 326 and 341 I.P.C., as above, the sentence awarded to him is reduced to the period already undergone by him. The appellant is on bail, in pursuance of the order passed by this Hon'ble Court on 27.09.1993 in S.B. Criminal Misc. Bail Petition No. 332/1993, the sentenced awarded to him was suspended. He need not surrender. His bail bonds stand discharged.
(DR.PUSHPENDRA SINGH BHATI), J.
23-SKant/-
(Downloaded on 07/05/2022 at 08:25:16 PM) Powered by TCPDF (www.tcpdf.org)