Rajasthan High Court - Jaipur
Asu And Anr. vs State Of Rajasthan on 30 June, 1999
Equivalent citations: 2000CRILJ207
JUDGMENT Mohd. Yamin, J.
1. Appellant Asu has been convicted for offence under Section 304, Part-I, IPC and sentenced to 10 years' rigorous imprisonment with a fine of Rs. 200/- and in default to undergo two months' rigorous imprisonment while appellant Hari Singh was convicted under Section 324, IPC and awarded sentence of one year's rigorous imprisonment by learned Sessions Judge, Jalore in Sessions Case No. 16/83 decided on 30-7-1983. Both of them have assailed their conviction and sentence by this appeal.
2. Briefly stated, fields of the appellants are situated on the eastern side of road leading from Malwara to Raniwara. Field of deceased Tara was situated on the western side of road. A well was situated in the field of Tara. The adjacent field belonged to Mohabbat Singh which was let out to Tara. A well of Mohabbat Singh was also situated on the eastern side of the road where one of his fields was situated which was in possession of Mesa, Asu and Dungara to whom it was let out. There situated a well of Hari Singh near it. The occurrence started with a very minor incident. On the day of incident Tara and his son Sara were removing the crop of gwar which was standing in the field of Mohabbat Singh which was in their possession. Sara was taking two bullocks to his field. Dungara accused met him. One of the bullocks of Sara fumbled at Dungara. Dungara struck the bullock by a lathi. Then Sara objected to it. Thereupon Dungara assaulted him with a lathi and inflicted an injury. Dungara then went to the well of Hari Singh. After some time the appellants as well as co-accused persons came to the field of Tara. Hari Singh was armed with a sword while Asu with an iron angle. Dungara and Mesa were armed with lathis while Snankar was having a stone. They exhorted to kill Sara and then Sara ran to some distance. His father Tara beseeched but Hari Singh inflicted an injury by sword while Asu by iron angle on the head of Tara. The co-accused persons also assaulted Tara. PW-1 Mohabbat Singh saw this incident and came to rescue the deceased. He also suffered an injury which Hari Singh inflicted by sword. Kewa and Peera who were working in nearby fields also came and the accused appellants along with co-accused persons ran away. It was PW. 1 Mohabbat Singh who reported the matter at police station Raniwara. Tara in injured condition was taken to Malwara hospital but the medical officer was not available, therefore, he was brought to Raniwara where he died.
3. Police registered a case under Sections 147, 148,302 and 149, IPC and started investigation. Injuries of Tara were examined at 9-00 p.m. on 7-11-1982 and are mentioned in Ex. P. 16 but when he died, his post-mortem report Ex. P/18 was prepared by medical officer of Bhinmal which states that he died due to haemorrhage and shock of head injury and fracture of skull bones. The Investigating Officer inspected the site and prepared memo of site Ex. P/2. Site plan Ex. P/13 was also prepared by him. Accused appellants were arrested. Accused appellant Asu divulged an information under Section 27 of Evidence Act and on the basis of his disclosure statement iron angle was recovered vide Ex. P/9. Similarly a sword was recovered at the instance of Hari Singh. Challan was submitted before Magistrate having jurisdiction who committed it to the learned Sessions Judge. Learned Sessions Judge framed charges under Sections 148, 302, 302/ 149, IPC against Hari Singh and under Sections 302, 148, 302/149, IPC against Asu Singh on 1-3-1983. Both of them denied the charges and claimed trial. Prosecution examined 11 witnesses in support of its case. Then the accused appellants were examined under Section 313, Cr. P.C. They produced Sanwal Das as a witness in defence. Thereafter, after hear ing both the parties, learned Sessions Judge convicted and sentenced accused appellant Asu under Section 304, Part I, IPC and Hari Singh under Section 324, IPC as stated above.
4. I have heard the learned counsel for the appellants as well as learned public prosecutor and the counsel for the complainant at length.
5. Learned counsel for the appellants Shri Doongar Singh first submitted that the accused persons have been acquitted on the same evidence while two have been convicted and thus the trial Court has commit ted an error. He submitted that the co accused persons Dungara and Asu suffered injuries but the prosecution has not been able to explain the injuries on the person of Asu, as such Asu should be acquitted. He submitted that even if the evidence against Asu is believed, the case does not travel beyond Section 304, Part-II, IPC as there was no intention to kill Tara who had come to beseeched to pardon the life of his son Sara. As such according to Shri Doongar Singh the sentence awarded is excessive and this appellant has already undergone a sentence of three years four months and 27 days which is sufficient for offence under Section 304, Part-II, IPC. For Hari Singh he has submitted that he should have been given benefit of probation as his age at the time of occurrence was about 24 years. However, he has submitted that this appellant has undergone a sentence of about nine months which should be sufficient in this case as occurrence had taken place some time in the year 1982 and the appeal is being decided in the year 1999.
6. On the other hand, learned public prosecutor and the counsel for the complainant have supported the judgment of trial Judge.
7. So far as first argument of the learned counsel for the appellants is concerned, I have gone through the entire evidence on record and have reappreciated it. I find that the learned trial Judge believed the evidence which proved the guilt of accused appellants and while doing so he has not committed any error of law. They are PW-1 Mohabbat Singh. PW--2 Sara, PW-3 Kewa and PW-4 Peera who saw the incident. Mohabbat Singh was the witness of even earlier incident when one of the bullocks of Sara had fumbled at Dungara and Dungara had inflicted a lathi blow on the bullock. Sara objected to it and then Dungara inflicted a lathi blow on Sara. PW-2 Sara who suffered a lathi blow has deposed so and he is corroborated by PW-3 Kewa. These witnesses i.e. Kewa and Mohabbat Singh were round about the place of occurrence while Sara himself suffered assault by lathi of Dungara. The first incident ended there and is well proved by these witnesses.
8. So far as the second and main incident is concerned, PW-1 Mohabbat singh stated that Hari Singh was armed with sword while Asu was armed with an iron angle. He further stated that these appellants along with co-accused persons chased Sara. According to the first information report Ex. P/l the accused appellants as well as co-accused persons were chasing Sara crying "Maaro-Maaro". It is corroborated in his statement that they had an intention to kill Sara but when Tara saw the incident he came in between and beseeched the appellants to forgive the life of Sara. PW-2 Sara and PW-3 Kewa who are also eye-witnesses have stated so. When Tara beseeched and prayed for forgiveness to Sara, it was Asu who inflicted injury on his head by iron angle while Hari Singh inflicted injury by sword on Tara. When Mohabbat Singh went to rescue Tara, Hari Singh inflicted injury on his right hand. This is supported by PW-2 Sara and PW-3 Kewa. PW-4 Peera had heard the noise when appellants were chasing Sara and when Sara's father was beseeching the appellants. He also saw appellant Asu inflicting head injury by iron angle. PW-3 Kewa and PW-4 Peera also saw the incident from a distance of 20-25 paces. When they reached near the appellants, the appellants ran away. The criticism levelled against these witnesses before the trial Court have been considered by the learned Sessions Judge in very great details and I find from the judgment in question that he has appreciated the evidence in correct perspective. I agree with the finding arrived at by the learned Sessions Judge on the basis of evidence to the effect that it was Asu who caused head injury to deceased Tara and Hari Singh caused injury by sword.
9. It was PW-11 Dr. Mohanlal Paniya who conducted postmortem of deceased Tara and found as many as six injuries on his body. When he opened the dead body of deceased Tara he found that there was haematoma "6 x 6" in anterior half of scalp. In the skull there was fracture of left parietal bone extending downwards to the temporal bone 5" long. Bone was depressed in size. There was another fracture of left parietal bone 1" long transversely and still there was third fracture of left parietal bone 3" long antero posteriorly. According to him lacerated wound on the left parietal region was sufficient in ordinary course of nature to cause death of deceased. This injury could be caused by iron angle like Article 1 which was shown to him during his statement. Thus it is proved beyond doubt that Tara died due to the injury caused by appellant Asu on his head by iron angle. It is also proved that it was Hari Singh who caused injury by sword to deceased Tara. When Asu was arrested vide Ex. P/ 7 on 8-11 -1982 he was wearing a 'Jhabba' which had blood spots at various places. There was an injury on the right side of his head which had dried blood. He was examined by medical officer of Bhinmal and his injury report is Ex. D/6 which mentions that there was a partially healed wound on the right parietal region posterior and there was a healed abrasion on the right forearm. These injuries were simple in nature. PW. 11 Dr. Mohanlal Paniya examined his injuries on 22-11-1982. According to him these injuries were caused by blunt weapon and duration as 10-15 days. The injuries on the person of this accused appellant are not such which may entitle him to acquittal as prayed by learned counsel for the appellants. Learned Sessions Judge considered the argument on behalf of defence that appellant Asu suffered these injuries and on this ground was entitled for acquittal but the argument was rejected for convincing reasons. PW-11 Dr. Mohanlal Paniya opined that the injuries on the person of Asu could be caused by fall. The defence story that deceased Tara inflicted injury by dharia to Asu was not believed by learned Sessions Judge as so stated by DW-1 Sanwal Das rightly because the injuries on the person of Asu are not such which might have been caused by dharia. I agree with the finding of learned Sessions Judge that the injuries on the person of Asu were such which do not effect credibility of the prosecution case. Injuries on the person of Asu are as explanatory and are such could be caused by fall.
10. From the evidence I find that accused appellant Asu could not have been convicted for offence under Section 304, Part-I, IPC as he had no intention to kill Tara. Section 304, Part-I, IPC applies where accused causes bodily injury with intention to cause death. The intention is lacking in this case. It is the intention to cause death which is essential in such cases and is that to which the law principally looks. Since the first part of the occurrence was very minor, there could be no intention on the part of appellant Asu to kill Tara at all because whatever grudge he had, it might be against Sara and not against Tara. It has come in evidence that when his son was going to be beaten, he beseeched to forgive him and then injury by iron angle was inflicted on his head by accused appellant Asu. By no stretch of imagination it can be concluded that he had any intention to Kill Tara. Tara suffered injury by iron angle which was in the hand of this accused Asu and died due to head injury after some time. I am of the view that offence does not travel beyond Section 304, Part-II, IPC. The argument of the learned counsel for the appellants is worth acceptance and I hold that appellant Asu is guilty for offence under Section 304, Part-II, IPC. Consequently, his conviction should be altered to Section 304, Part-II, IPC.
11. So far as appellant Hari Singh is concerned, it is proved beyond doubt that he inflicted simple injury by sword which is punishable under Section 324, IPC. So his conviction under Section 324, IPC should be maintained.
12. The arguments of the learned counsel for the appellants regarding sentence are convincing and worth acceptance.
13. Looking to all the facts and circumstances I partly allow the appeal. Sentence of appellant Asu is altered from Section 304, Part I,IPC to Section.304 Part II, IPC and he is sentenced to the period already undergone which is three years four months and 27 days. Conviction of appellant Hari singh under Section 324, IPC is maintained but his sentence is reduced from one year to the period already undergone which is about nine months.