Rajasthan High Court - Jodhpur
Babu Lal & Ors vs State on 10 August, 2017
Author: G.K. Vyas
Bench: Gopal Krishan Vyas, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 792 / 2015
1. Babu Lal S/o Sh. Nathu, by caste Lahoor (ST), Resident of
Village Kaligar, Police Station Ogana, District Udaipur.
2. Lalu S/o Sh. Limba, by caste Lahoor (ST), Resident of Vilalge
Ghodimari, Police Station Ogana, District Udaipur.
3. Nakka Lal S/o Sh. Hakra, by caste Gamar (ST) Resident of
Village Amaliya Police Station Falasiya, District Udaipur.
4. Somraj S/o Sh. Gunjaji, by caste Gamar (ST), Resident of
Village Amaliya Police Station Falasiya, District Udaipur.
----Appellants
Versus
State of Rajasthan
----Respondent
Connected With
D.B. Criminal Appeal No. 980 / 2015
Magan Lal S/o Sh. Bhuraji Gamar, Resident of Amaliya Police
Station Falasiya, District Udaipur.
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Pradeep Shah & Mr. Deepak Menaria
For Respondent(s) : Mr. C.S. Ojha, PP.
_____________________________________________________
(2 of 20)
[CRLA-792/2015]
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
JUDGMENT
[Per Hon'ble Mr. G.K. Vyas, J.] Date of Judgment: 10th August, 2017 Both these appeals are filed under Section 374 (2) Cr.P.C. against the judgment dated 10th of July, 2015 passed by learned Addl. Sessions Judge No.1, Udaipur (for brevity, hereinafter referred to as „Trial Court‟) in Session Case No.42/2011 arising out of F.I.R. No.108/2011 registered at Police Station Falasiya, District Udaipur, whereby the learned trial court convicted the accused appellants for offence under Sections 148, 341 and 302/149 of IPC and passed following sentence against them, which reads as under:
Section 148 of IPC Simple Imprisonment for two years along with fine of Rs.500/-
In default of payment of fine, to further undergo simple imprisonment for fifteen days.
Section 341 of IPC Simple imprisonment for one month along with fine of Rs.500/-. In default of payment of fine to further undergo simple imprisonment for fifteen days.
Section 302/149 of IPC Imprisonment for life along with fine of Rs.2000/-. In default of payment of fine, to further undergo simple imprisonment for two months.
As per facts of the case, PW.-1 Shantilal (complainant) gave verbal information to the SHO, Police Station- Falasiya, District-
Udaipur on 25.08.2011, upon which the SHO, registered a formal (3 of 20) [CRLA-792/2015] F.I.R. No.108/2011 for the offences under Sections 147, 148, 341 & 323 of IPC and commenced the investigation.
According to allegations levelled in the FIR by the complainant, Shantilal, on 24.08.2011 in the night at about 09.00 PM, the appellants on a trifle issue voluntarily caused injuries on the person of one Nanji, as a consequent of which he died. Since after registration of the FIR injured Nanji died, therefore, Section 302 of IPC was added during investigation. The appellants along with one Mangi Lal were arrested and after investigation charge sheet was filed against them in the court of learned A.C.J.M., Jhadol, the learned Magistrate committed the case for trial to the court of Sessions Judge, Udaipur, but in compliance of order passed by Sessions Judge, Udaipur the case was transferred to the court of Addl. Sessions Judge No.1, Udaipur for trial.
The learned trial court after framing charges against the accused appellants for offence under Section 148, 341 and 302/149 IPC proceeded to record the evidence of prosecution. In support of prosecution case, statements of 18 prosecution witnesses were recorded including eyewitnesses and 28 documents were exhibited in support of prosecution case.
After recording the evidence of prosecution, statements of accused appellants were recorded under Section 313 Cr.P.C., in which they denied all the allegations made by the prosecution witnesses and inspite of granting opportunity to lead evidence in defence, no defence evidence was led by them.
(4 of 20) [CRLA-792/2015] Thereafter final arguments were heard by the trial court and after considering the arguments and evidence record proceeded to convict the accused appellants for offence under Sections 148, 341 and 302/149 of IPC vide judgment impugned dated 10.07.2015. In both these appeals, the judgment is under challenge.
Mr. Pradeep Shah and Mr. Deepak Menaria, learned counsel appearing on behalf of accused appellants vehemently argued that a grave error has been committed by the trial court to convict all the accused appellants for the alleged offence of murder under Section 302/149 of IPC, which is evident from the fact that allegation of eyewitnesses has not been supported by medical evidence, so also presence of eyewitnesses, is seriously doubtful. It is also argued that the complainant involved five persons in the incident, whereas as per postmortem report and statements of the doctor, only two injuries were found upon the body of the deceased, and out of two injuries, one injury was abrasion, but the learned trial court was under a legal obligation to assess the entire evidence in proper manner so as to hold accused appellants guilty for the offence u/s 302/149 of IPC. It is further argued that motive/intention is important ingredient for constituting offence u/s 302/149 IPC, but here in this case, the prosecution has failed to prove any motive or intention of the accused appellants to cause death of Nanji (deceased), because in the the statement of PW.-1 Shantilal, PW.4- Heeralal and PW.14- Laxman (son of the deceased and Sarpanch of the village), no such fact is disclosed to (5 of 20) [CRLA-792/2015] prove any motive or common intention of the accused appellants.
As per statements of eyewitnesses of the prosecution, out of five persons, only one accused, namely, Babulal was having "Lathi" in his hand, so also, there is allegation against the accused, Babulal, for inflicting injury by "Lathi" that too for an incident when all the accused appellants were going on road along with their buffalos an objection was raised by Nanji (deceased) that where are you taking these buffalos at that time, some quarrel took place in between them. The argument of learned counsel for the appellants is that there was no common object or preparation of the accused appellants to commit murder of deceased Nanji, more so, the occurrence took place in a spur of moment when the appellants were going on road with their buffalo and objection was raised by Naji for the said buffalos. In view of above argument it is submitted that even if the entire prosecution evidence including statements of the eyewitness are accepted, then also, except accused- Babulal, involvement of other four appellants has not been proved because as per statements of Dr. Akhilesh Sharma (PW.15) categorically said that only two injuries were found upon the body of the deceased, and Nanji died after two days of the incident on 27.08.2011.
While inviting our attention towards postmortem report (Ex.P/13) dated 28.08.2011 and the opinion of doctor in the postmortem report, it is pointed out that the cause of death was head and brain injury, the said injury was sufficient to cause death of the deceased. The crux of argument of learned counsel for the (6 of 20) [CRLA-792/2015] appellant is that allegation of prosecution for involvement of all the five accused persons for the alleged offence has not been proved beyond reasonable doubt because there is no evidence to support the prosecution case. As per statements of eyewitness viz. PW.4 Heeralal (child witness) and PW.14- Laxman (son of the deceased), the occurrence took place all of sudden in which one injury was caused by the accused- Babulal by "Lathi" upon the head of Nanji, which resulted into the death of deceased. The "Lathi" i.e. weapon of offence, was recovered upon information given by accused appellant under Section 27 of Evidence Act vide Ex.P/8 but no blood was found on the same. Therefore, it is obvious that except accused appellant Babulal, all other four accused appellants are falsely implicated by the prosecution without there being any corroborative evidence and statements made by the eyewitnesses.
With regard to accused appellant- Babulal, it is submitted that occurrence took place all of sudden, therefore, the finding of guilt recorded against him for offence under Section 302/149 IPC is not sustainable in law because as per postmortem report, only one injury was found upon the head of deceased, which resulted into the death after two days and second injury was abrasion, therefore, accused appellants, Lalu, Nakka Lal, Somraj and Magan Lal, are entitled to be quitted from the charges levelled against them because prosecution has failed to prove its case beyond reasonable doubt against them. The finding thus recorded by the trial court against appellant- Babulal, under Section 302/149 IPC (7 of 20) [CRLA-792/2015] deserves to be quashed and his conviction is required to be altered from offence under Section 302/149 IPC to Section 304 Part-I of IPC, therefore, the sentence of life imprisonment may also be reduced appropriately.
In support of this arguments, learned counsel for the appellants relied upon following judgments: -
1. State of Himmachal Pradesh Vs. Ram Pal, reported in 2006 (2) SCC (Cri.) 165
2. Arjun Vs. State of Maharasthra reported in 2012 Cr.L.R. (SC) 506
3. Sudhakar Vs. State of Maharasthra reported in 2012 Cr. L.R. (SC) 1025
4. Dilip Kumar Mondal & Anr. Vs. State of West Bengal, reported in 2015 (2) SCC (Cri.) 318
5. Arjun & Anr. Vs. State of Chhattishgarh reported in AIR 2017 SC 1150
6. Arumugam Vs. State represented by Inspector of Police, reported in (2009) 3 SCC (Cri.) 1130
7. Jose @ Pappachan Vs. The Sub-Inspector of Police, Koyilandy & Ors. reported in (2016) 10 SCC 519 Per contra, learned Public Prosecutor appearing on behalf of State vehemently opposed submissions made by the learned counsel for the appellants and submitted that there is no force in the arguments of the learned counsel for the appellants that prosecution has failed to prove its case beyond reasonable doubt because the eyewitnesses of the incident viz. PW.3- Nathulal, PW.4- Heeralal and PW.7- Khemraj, PW.9 Kalu, PW.10- Pandi and PW.14- Laxman (son of deceased) categorically stated before the court that deceased, Nanji was assaulted by all the accused appellants and due to said beatings he died after two days, therefore, the learned trial court after considering evidence of the (8 of 20) [CRLA-792/2015] eyewitnesses, gave finding that appellants are guilty for committing offence under Section 302/149, 148 and 341 of IPC.
Thus, none of the arguments advanced by the learned counsel for the appellants deserve acceptance.
It is further argued that upon receipt of oral information given by PW.1 Shantilal, immediately went at the place of occurrence and injured Nanji was taken to Maharana Bhupal Hospital, Udaipur on 25.08.2011 for treatment but he died after two days during treatment on 27.08.2011. The postmortem was conducted by the medical jurist Dr. Akhilesh Sharma (PW.15) and he gave postmortem report (Ex.P/13), in which it was specifically opined that deceased died due to head injury because said injury was sufficient to cause death. It is also argued that presence of accused appellants is proved from the statements of eyewitnesses, therefore, it cannot be said that appellants were not present at the time of occurrence took place and participated in the incident.
Lastly, it is argued by learned Public Prosecutor that the learned trial court gave cogent finding against the appellants after assessment of fact and evidence of recovery of "Lathi" which is said to be recovered as per information given by accused appellant Babulal. The place of occurrence was also verified by all the accused appellants in pursuance of information given by accused appellants, therefore, it is prayed that appeals may kindly be dismissed.
(9 of 20) [CRLA-792/2015] After hearing the learned counsel for the parties, we have perused the entire evidence in the light of submissions made by the learned counsel for the parties. There is no doubt that upon verbal information given by PW.1- Shantilal at Police Station Falasiya, wherein allegations were levelled against the appellants for quarrel and infliction of injuries. However, as per statements of PW.1- Shantilal, it cannot be said that he is eyewitness as he reached on the spot after receiving information given by the other persons who were present there. PW.2- Dharmilal, is the witness of preparation of "Panchnama" (Ex.P/5). PW.3- Nathulal, seems to be eyewitness of the incident and in his statement allegations are levelled by him against Babulal for inflicting injury by "Lathi". No allegations are levelled by him for causing any injury by the other accused appellants.
PW.4- Heerlal, who was 14 years of age on the date of recording of his statements, submitted that in the evening when my father Nanji was going towards village Deorawas, in between the way, Somraj, Babulal, Nakkalal, Maganlal and Lalu Ram were going on the way, and they were beating buffalo/s, therefore, my father (deceased Nanji) asked that why you are beating buffalo, then appellants made quarrel with him and in that quarrel, Babulal assaulted the deceased Nanji.
Another witness PW.5- Prabhulal, is the witness of preparation of "Panchnama" of dead body and Ex.P/4, whereby dead body of deceased was handed over. He is not eyewitness. PW.6- Kamal is also witness of preparation of Ex.P/6, Ex.P/7 and (10 of 20) [CRLA-792/2015] Ex.P/8, which are place of occurrence, identification memo of place of occurrence. PW.7- Khemraj, is eyewitness. He has categorically stated that one injury was caused by Babulal upon his grandfather, Nanji and other accused persons inflicted injury by stone. PW.8- Deeta, PW.9- Kalu and PW.10- Pandi, gave similar statement as given by other eyewitnesses.
We have perused the statement of PW.14- Laxman (son of deceased Nanji) and Ex-Sarpanch of the village. Though said witness is claiming himself to be an eyewitness but in the first line of the cross-examination he said that when I reached on the spot, Nanji was lying on the surface and Shantilal and Heeralal were lifting him. Meaning thereby, PW.14 is not the eyewitness but he has stated before the court the reason of quarrel, which reads as under: -
"djhcu M<s + lky igys dh ckr gAS eSa ml le; ejs s ?kj ij FkkA "kke dks vkB cts dh ckr gSA ukuth "kkUrhyky ds ?kj ls tk jgk FkkA lkFk eas [kes jkt vkjS ghjkyky Hkh FkkA vkrs le; jkMs + ds ikl ckcq yky vkSj ykyq jke] lkes jkt] exu feys FkAs ;s HkSl a yd s j vk jgs FkAs eqyfteku vkt gkftj vnkyr gAS ukuth us dgk fd HkSl a dgka ij yd s j tk jgs gkAs rks eqyfteku us dgk fd geas cky s us okyk rq dkSu gkrs k g]S vkSj bUgkus s xkyh xykSp dh vkSj ckcqyky us ukuth ds yV~B dh ekjhA ykyqjke ds ikl eas Hkh yV~B FkkA nl q js ykxs kas us ykras vkSj yVB~ k ls ekj dj uhps fxjk fn;kA yV~B ls ekjus ls ukuth ds nkus kas dku ij pkVs vk;h vkSj lhj ij pkVs vk;hA ejs s ikl Vkp s Z FkhA euaS s Vkps Z yd s j n[s kkA eqyfteku eas ls rks cky f[kp a jgk FkkA nl q js ukuth ds Åij [kMs+ jgdj iSj ls nck jgk Fkk ,d us gkFk idM+ j[kk Fkk vkjS ,d xnuZ ij ykr ekj jgk FkkA fQjghjk o [kes jkt us vkokt ekjh ftlls nks pkj tus vkSj vk x;As "
(11 of 20) [CRLA-792/2015] Upon perusal of above statements, it is abundantly clear that there was no common object or common intention of the accused appellants and incident took place all of sudden when deceased raised objection that as to why they were carrying the buffalos. The other witnesses categorically stated that the appellants were causing injury to the buffalos which was objected by Nanji, but this said that Nanji may query from where you have taken buffalo.
We have considered the aforesaid evidence in the light of statement of Dr. Akhilesh Sharma (PW.15), so also perused the postmortem report (Ex.P/13). In the postmortem report, the cause of death is given by the medical jurist, who conducted the postmortem, is as under:
"Cause of death is coma due to ante mortem head and brain injury sufficient to cause death in ordinary course of nature caused by blunt weapon."
Upon perusal of statement of Dr. Akhilesh Sharma (PW.15), it is obvious that only two injuries were found upon the body of the deceased and out of two injuries one injury was abrasion upon right chick of the deceased and injury No.1 was found upon the head and said injury was the cause of death.
Upon consideration of entire evidence, it emerges from the facts that incident took place in a spur of moment when appellants were going with their buffalos and objection was raised by the deceased Nanji for not beating buffalos, in the said incident a specific allegation was levelled against Babulal for inflicting injury on the head by "Lathi" and no other injury was found upon the (12 of 20) [CRLA-792/2015] body of the deceased except one abrasion on the chick. Therefore, it creates doubt for the presence of alleged eyewitness because they implicated four other accused viz. Laluram, Nakkalal, Somraj and Maganlal in the incident with specific allegation that they caused injury to the deceased when quarrel took place, but no such injuries were found upon the body of the deceased, nor there is any corroboration in statement of the doctor and postmortem report (Ex.P/13).
The Hon‟ble Supreme Court in the case of State of Himmachal Pradesh Vs. Ram Pal, reported in 2006 (2) SCC (Cri.) 165, gave following verdict to alter the conviction from offence under Section 302 IPC to Section 304 Part-I of IPC, the paras nos. 5 to 8 of the said judgment are as follows:
"5. Having perused the record for the limited purpose of finding the nature of offence, we see that it is clear from the evidence of PW- 3 himself that he and Jaiwant consumed liquor before going to the tea stall of the respondent herein to demand the money which was due to him and when they reached there the deceased went inside the tea stall and started quarreling with the accused persons. During the said quarrel it is stated that the deceased called the accused persons as "cheat"
and "beiman" and the quarrel then spilled outside the stall at which point of time a stick that was carried by Choudhary Ram was snatched by PW- 3, in the process Choudhary Ram got injured and fell down. Here we must notice the case of the defence is that PW- 3 assaulted Choudhary Ram which caused him facial injury and noticing his father being assaulted the respondent intervened and assaulted PW- 3 first with a (13 of 20) [CRLA-792/2015] knife and then assaulted the deceased twice on his back.
6. On the facts of this case whichever version we take it is clear that it is the deceased and PW- 3 after consuming liquor went to the tea stall of the accused. When the deceased went inside and abused the accused, the said verbal quarrel then spilled outside the shop when Choudhary Ram was injured on the fact either intentionally or otherwise by PW- 3. It is at that time the respondent stabbed PW--3 and the deceased. From the above facts stand proved are (a) the deceased went with PW- 3 to the shop of the accused;
(b) picked up an argument during which he abused the accused; (c) Choudhary Ram was injured first and then the respondent stabbed PW- 3 and the deceased; (d) injury was inflicted on the back of the deceased.
7. On the above facts we are of the opinion that the High Court was justified in altering the sentence from Section 302 IPC to Section 304 Part I IPC. We are also in agreement with the finding of the High Court that sentence of over 4 years' RI suffered by the respondent meets the ends of justice.
8. For the reasons stated, this appeal fails hence dismissed."
In the case of Arjun Vs. State of Maharasthra reported in 2012 Cr.L.R. (SC) 506, the Hon‟ble Supreme Court gave following verdict:
"17. Considering the background facts as well as the fact that there was no premeditation and the act was committed in a heat of passion and that the appellant had not taken any undue advantage or acted in a cruel manner and that there was a fight between (14 of 20) [CRLA-792/2015] the parties, we are of the view that this case falls under the fourth exception to Section 300 IPC and hence it is just and proper to alter the conviction from Section 302 IPC to Section 304 Part 1 IPC and we do so.
18. We are informed that the appellant is in custody since 30.07.2003. In our view, custodial sentence of 10 years to th e accused-appellant accordingly. The appeal is accordingly disposed of, altering the sentence awarded."
In the case of Sudhakar Vs. State of Maharasthra reported in 2012 Cr. L.R. (SC) 1025, the Hon‟ble Supreme Court held as under:
8. Whatever be the subsequent versions made by P.Ws 1 and 2 before the Court, it came out in evidence that at the time of occurrence there were only three persons, namely, the appellant, P.W.1 and th e deceased. The admission of P.W.1 that the deceased had drinking habit and that whenever he was under the influence of liquor he used to create a ruckus in the house was a factor which had to be necessarily borne in mind while considering the offence alleged and proved against the appellant. Though there is variation in the version of P.W.1, as between the complaint and her evidence before the Court, going by the evidence available on record, the conclusion of the Trial Court that the appellant was responsible for the death of the deceased is unassailable. Apart from the exclusive presence of the appellant with a weapon in his hand as deposed by P.W.2, the other two persons were the deceased and P.W.1. The said conclusion of the Trial Court as well as that of the High Court cannot be doubted. Further the report of the chemical analysis (15 of 20) [CRLA-792/2015] Exhibits 35 and 36 also disclosed that the blood stained clothes of the appellant matched with the blood group of the deceased which were found on the clothes of the deceased himself. Therefore, there was conclusive proof to hold that it was appellant who was responsible for the single stab injury inflicted upon the deceased with the aid of the knife seized under Exhibit-47. Having reached the above conclusion, the only other question raised was as to whether there is any mitigating circumstance in order to hold that the offence would fall under any of the Exceptions to Section 300 of IPC to state that it was a case of culpable homicide not amounting to murder."
The Hon‟ble Supreme Court in the case of Dilip Kumar Mondal & Anr. Vs. State of West Bengal, reported in 2015 (2) SCC (Cri.) 318 held as infra: -
"24. In order to invoke Exception 4 to Section 300 Indian Penal Code, it must be further shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The Appellants are said to have inflicted injuries with henso and dau. By a perusal of Ext. P6 post-mortem certificate, it is seen that the deceased sustained one incised injury on the back which has caused injury to scapula and spinal cord and another incised wound over the back just below the right scapula causing injury to the right lung and pleura. Insofar as the injuries caused to Ranjit Debnath and Santosh Debnath, there is no sufficient evidence as to the alleged injuries caused to them. As far as PW-10- Nikhil Debnath is concerned, he was discharged from the hospital after giving first aid treatment indicating thereby that the injury was not grievous. Considering the injuries, in our view, it cannot be said that the (16 of 20) [CRLA-792/2015] accused have taken undue advantage of the situation. The incident was not premeditated and the scuffle between the parties led to the causing of injuries to the deceased Nripen Debnath and considering the circumstances of the case, in our view, the offence would fall Under Section 300 Indian Penal Code Exception 4 and the conviction of the Appellants is to be modified and altered Under Section 304 Part I IPC."
In the case of Arjun & Anr. Vs. State of Chhattishgarh reported in AIR 2017 sc 1150, the Hon'ble Court held as infra:
"22. The accused, as per the version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but the sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre- meditation. Injuries as reflected in the post-mortem report also suggest t h at appellants h av e not t ak e n undue advantage or acted in a cruel manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC.
23. When and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II IPC. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I IPC. The conviction of the appellants under Section 302 read with Section 34 IPC is modified under Section 304 Part I IPC.
(17 of 20) [CRLA-792/2015] As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 2nd March, 2016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed, for the modified conviction under Section 304 Part I IPC, the sentence is modified to that of the period already undergone.
24. In the result, conviction of the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 Part I IPC and the sentence is reduced to the period already undergone and these appeals are partly allowed accordingly. The appellants are ordered to be released forthwith unless required in any other case.
25. Fee of the learned Amicus is fixed as per Rules."
It is also one of the important fact that prosecution is required to prove its case beyond reasonable doubt but upon consideration of evidence, it is obvious that prosecution has failed to prove its case beyond reasonable doubt, except against appellant- Babulal. As per verdict judgments of Hon‟ble Apex Court in the cases of Jose @ Pappachan Vs. The Sub- Inspector of Police, Koyilandy & Ors. reported in (2016) 10 SCC 519 has held as infra: -
"56. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in (18 of 20) [CRLA-792/2015] the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or nonexistent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted"
It emerges from the prosecution evidence that a quarrel took place all of sudden when all the five appellants were going with their buffalos and an objection was raised by Nanji. In the said quarrel, deceased Nanji suffered one head injury which was found to be sufficient to cause death. Therefore, we are of the opinion that presence and participation of the four accused appellants viz. Laluram, Nakkalal, Somraj and Maganlal in the incident, is highly doubtful. But, at the same time we cannot lose sight of the fact that all the eyewitnesses specific stated that head injury was caused by Babulal, that too by a "Lathi" and this fact is corroborated by medical evidence. There is no doubt that incident took place all of sudden in between the way, in which one head injury was caused by Babulal by "Lathi", due to said injury Nanji died during treatment. Therefore, we have no hesitation to hold that finding recorded by learned trial court for offence under Sections 148, 341 & 302/149 of IPC against accused appellants, (19 of 20) [CRLA-792/2015] Laluram, Nakkalal, Somraj and Maganlal, is not sustainable in law, because as per statement of all the witnesses, their presence was natural, but the allegation for inflicting injury has not been proved and there is no evidence of common I ntention, therefore, they are entitled to be acquitted from the charges levelled against them while giving them benefit of doubt.
With regard to accused appellant- Babulal, we are of the opinion that finding recorded by the learned trial court holding him guilty for offence under Sections 302/149, 341 and 148 IPC is not sustainable in law as it is a case of culpable homicide not amounting to murder, therefore, conviction and sentence passed by learned trial court against accused appellant Babulal for offence u/s 302/149 is hereby quashed and same deserves to be altered from offence u/s 302/149 IPC to offence u/s 304 Part I of IPC.
Accordingly, and in view of above discussion and in the light of aforesaid judgments, the criminal appeal (D.B. Cri. Appeal No. 792 / 2015) is partly allowed while giving them benefit of doubt, the conviction and sentence passed by learned Addl. Sessions Judge No.1, Udaipur vide judgment impugned dated 10.07.2015 in Session Case No.42/2011 against accused appellants, Lalu, Nakka Lal and Somraj, is hereby quashed and set aside. So far as appellant- Babulal is concerned, his conviction for offence under Section 302/149 IPC is hereby altered to offence under Section 304 Part-I of IPC and the sentence of life imprisonment is hereby reduced to ten years‟ rigorous imprisonment, however, the order of fine is hereby maintained.
(20 of 20) [CRLA-792/2015] The connected appeal (D.B. Cri. Appeal No.980/2015) filed by accused appellant- Maganlal is allowed while giving him benefit of doubt and the conviction and sentence passed by learned Addl. Sessions Judge No.1, Udaipur for offence under Section 302/149, 341 & 148 IPC vide judgment impugned dated 10.07.2015 in Session Case No.42/2011 against accused Maganlal, is hereby quashed and set aside.
The accused appellants, Lalu, Nakka Lal, Somraj and Maganlal are on bail, their bail bonds are hereby discharged.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellants, Lalu, Nakka Lal, Somraj and Maganlal, are directed to forthwith furnish personal bonds in the sum of Rs.20,000/- and a surety bond in the like amount each, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J. DJ/-
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