Rajasthan High Court - Jodhpur
Ami Lal & Ors. vs . The State Of Raj. on 12 February, 2015
{1}
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
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:Judgment:
Ami Lal & Ors. Vs. The State of Raj.
S. B. Criminal Appeal No. 84 of 1990
under Section 374(2) of Cr.P.C. against the
judgment and order dated 22.02.1990
passed by the learned Additional Sessions
Judge, Nohar in Sessions Case No.42/1988,
whereby the appellants-accused were
convicted and sentenced for the offences
under Sections 147, 323, 323/149, 304 Part-
II and 304 Part-II/149 IPC.
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Date of Judgment ::: February 12, 2015
Present
Hon'ble Mr. Justice Banwari Lal Sharma
Mr. SG Ojha, for the appellant.
Mr. LR Upadhyay, Public Prosecutor.
By the Court:
The appellants have preferred this appeal under Section 374(2) Cr.P.C. against the judgment and order dated 22.02.1990 passed by the learned Additional Sessions Judge, Nohar in Sessions Case No.42/1988, whereby the appellants-accused were convicted for the offences under Sections 147, 323, 323/149, 304 Part- II and 304 Part-II/149 IPC and were sentenced as under:-
{2} Accused Amilal:
U/s.304 Part-II IPC : 7 years' RI U/s. 147 IPC : 1 year's RI U/s. 323/149 IPC : 6 months' RI Accused Girdhari Lal: U/s.304 Part-II IPC : 7 years' RI U/s.147 IPC : 1 year's RI U/s.323 IPC : 6 months' RI Accused Shubh Karan:
U/s.304 Part-II/149 IPC: 4 years' RI U/s.147 IPC : 1 year's RI U/s.323/149 IPC : 6 months' RI Accused Amar Singh U/s.304 Part-II IPC : 7 years' RI U/s.147 IPC : 1 year's RI U/s.323/149 IPC : 6 months' RI Accused Krishna Chandra:
U/s.304 Part-II/149 IPC: 4 years' RI U/s.147 IPC : 1 year's RI U/s.323/149 IPC : 6 months' RI The brief facts of the case are that complainant Ramjilal (PW-4) gave a parcha bayan (Ex.P/12) alleging therein that there is a dispute with Amilal etc. On 09.07.1988, when he and his father Begraj reached to the village and when they were {3} passing from in-front-of the house of Amilal, then suddenly Amilal, Girdhari, Amar Singh, Shubhkaran and Krishna surrounded them armed with lathis and inflicted lathi blows on the leg of his father Begraj due to which his father fell down. Thereafter, Krishna and Shubhkaran caught hold the hands of his father and Girdhari, Amar Singh and Amilal started inflicting lathi blows on the hands and legs of his father. Thereafter, her sister Rukma reached and he and his sister both tried to intervene but they were also beaten. Then Sahabram etc. also reached there. The accused ran away.
On the basis of this parcha bayan, the police registered an FIR (Ex.P/12) at P.S. Nohar for the offences under Sections 307, 325, 323, 147, 148, 149 and 341 IPC and investigation commenced. During investigation, Begraj succumbed to the injuries on which Section 302 IPC was added. After investigation, the police filed a charge-sheet in the court wherefrom the case was committed to the court of learned Additional Sessions Judge, Nohar (hereinafter referred {4} to as 'the learned trial court). After hearing, the learned trial court framed charges for the offences under Sections 148, 302/149 and 323/149 IPC to which they denied and claimed trial. To substantiate the charges, the prosecution examined as many as 10 witnesses and exhibited documents. The appellants- accused were examined under Sections 313 Cr.P.C. wherein they denied and did not lead any evidence in defence. The prosecution, thereafter, moved an application for amendment in charge and the learned trial court, instead of amending the charges, framed charges for the offences under Sections 302, in alternative 302/149 and Section 323/149 IPC against accused Amilal and Girdhari, under Sections 302, in alternative 302/149 and Section 323 IPC against accused Amar Singh and against accused Shubhkaran and Krishna under Sections 302/149 and 323/149 IPC to which they also denied and claimed trial. Charges under Sections 147 and 148 IPC were kept as it is. The prosecution and accused did not choose to lead additional evidence. After trial, the learned trial court, {5} vide impugned judgment and order dated 22.02.1990, convicted and sentenced the appellants-accused as aforesaid.
Being aggrieved of the aforesaid judgment of conviction and order of sentence, the appellants- accused have preferred this appeal, which was admitted for hearing by this court vide order dated 02.03.1990 and record of the learned trial court was called for.
I have heard Mr. SG Ojha, learned counsel for the appellant-accused and Mr. LR Upadhyay, learned Public Prosecutor and perused the available record.
The learned counsel for the appellant- accused has submitted that the incident took place in- front-of the house of the accused and it was the complainant party who provoked the accused. It was also submitted by him that no independent witnesses were produced and the alleged eye-witnesses are son and daughter of the deceased. Thus, the prosecution has failed to prove the case beyond the reasonable {6} doubt. He further submitted that no injury was opined as dangerous to life, without which, the case cannot travel beyond Section 325 IPC.
It was thus prayed that this appeal may be allowed and the appellants-accused may be acquitted.
Per contra, the learned Public Prosecutor supported the impugned judgment and order and submitted that the prosecution was successful in bringing home the guilt of the appellant-accused beyond the reasonable doubt. It was submitted by him that the learned trial court, after careful scrutiny of the evidence, has rightly convicted and sentenced the appellant-accused which does not warrant any interference by this court and prayed that the appeal may be dismissed.
I have considered the rival submissions made at the Bar.
Ramjilal (PW-4), complainant, in his statement clearly deposed that on the date of incident, he and his father were coming from Nohar and when they reached near the house of Amilal;
{7} Amilal, Girdhari, Amar Singh, Shubhkaran and Krishna, armed with lathis, surrounded them and started beating his father due to which his father fell down. Thereafter, Shubhkaran caught hold the hands and Krishna caught hold the legs of his father and Amilal, Girdhari and Amar Singh started inflicting lathi blows to his father. When his father raised hue and cry, his sister Rukma reached there and they both tried to intervene. Thereafter, the accused ran away and his father was taken to the hospital and thereafter he informed the police on which SHO came there and he gave his parcha bayan (Ex.P/12). When his father became serious, he was referred to Hanumangarh Hospital where he succumbed to the injuries after six days of the incident. Rukma (PW-5) also corroborated the statement of Ramjilal (PW-4).
The complainant Ramjilal (PW-4) gave parcha bayan soon after the incident and the police, during investigation, also recorded the statement of Rukma and there was no contradiction in their statement. Though these are son and daughter of the {8} deceased but only on this basis, their testimonies cannot be disbelieved. Further, it cannot be believed that a son and daughter will give false statement and will falsely implicate another persons while leaving actual culprit.
Dr. Prakash Chand Gupta (PW-3) examined the injuries of Begraj in the hospital at Nohar and prepared injury report (Ex.P/7). As per the injury report there were seven injuries out of which injuries Nos.1, 4 and 5 were grievous in nature.
Dr. Rajkumar Singhal (PW-10), who conducted postmortem of the body of Begraj and prepared postmortem report (Ex.P/33) in which it was clearly opined the cause of death as Fat Embolism caused due to fracture of long bones like tibia and humerus.
From the medical evidence, it is clear that the death occurred due to fracture of long bones like tibia and humerus caused by blunt weapon due to which fat embolism developed. The fat embolism occurs due to fracture of long develop and it usually {9} develops after 12-36 hours of the injury. In the present case, as per medical evidence, long bones (tibia and humerus) were fractured and therefore, fat embolism developed due to which the deceased died. The accused, clearly knowing the fact that it may be dangerous, inflicted lathi blows and caused such injuries, which resulted into culpable homicide. The learned trial court, while considering all these facts and circumstances of the case, has rightly held the prosecution case to be proved beyond reasonable doubt and has rightly convicted the appellants-accused, which does not warrant any interference by this court.
Now comes the question of sentence regarding which it has been submitted by the learned counsel for the appellant-accused that the incident is of 1988 and since then the appellants are facing protracted trauma of trial, therefore, looking to the over-all facts and circumstances of the case, the sentence may kindly be reduced to already undergone.
Considering the over-all facts and {10} circumstances of the case, I do not deem it proper to interfere with the sentence awarded for the offence under Sections 147, 323 and 323/149 IPC. So far as the offence under Section 304 Part-II and Section 304 Part- II/149 IPC is concerned, I also do not deem it proper to interfere with the sentence awarded to the appellants- accused Shubh Karan and Krishna Chandra for the offence under Section 304 Part-II/149 IPC. However, I deem it proper to reduce the sentence awarded to the appellants-accused Ami Lal, Girdhari Lal and Amar Singh for the offence under Section 304 Part-II IPC from 7 years' rigorous imprisonment to 5 years' imprisonment.
In view of the above, I do not find any ground to interfere with the conviction recorded against the appellants-accused. However, sentences awarded to the appellants-accused Ami Lal, Girdhari Lal and Amar Singh for the offence under Section 304 Part-II IPC is reduced from 7 years' rigorous imprisonment to 5 years' rigorous imprisonment. Rest of the sentences awarded to the appellants-accused {11} are maintained.
The appeal stands disposed of accordingly. The appellants-accused are on bail. Their bail bonds stand cancelled. They are directed to surrender before the learned trial court to serve the remaining sentence.
Record of the learned trial court be sent back with a copy of this judgment.
[Banwari Lal Sharma],J.
/skm/