Rajasthan High Court - Jaipur
Ramcharan vs State Of Rajasthan on 16 July, 2018
Bench: Mohammad Rafiq, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 267/1989
Ramcharan son of Ramkalyan Dhankar aged 30 years, resident
of Reejhiya Police Station & Tehsil Mangrol, District Kota.
----Accused/Appellant
Versus
State of Rajasthan through P.P.
----Respondent
For Appellant(s) : Mr. Biri Singh Sinsinwar, Sr. counsel with Mr. Rajesh Choudhary For Respondent(s) : Mr. R.S. Raghav-P.P. HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment 16/07/2018 (Per Justice Goverdhan Bardhar) This criminal appeal has been preferred by the accused appellant Ramcharan under Section 374 (2) Cr.P.C. against the judgment dated 26.07.1989 passed by the learned Addl. Sessions Judge, Baran in Sessions Case No. 58/1984 whereby the learned trial court convicted the accused appellant for the offence under Sections 302 and 323 IPC and passed the following sentence:
Under Section 302 IPC Life imprisonment with fine of Rs. 500/- and in default of payment of fine to further undergo three months simple imprisonment.
Under Section 323 IPC Fine of Rs. 500/- and in default of payment of fine, to further undergo three months simple imprisonment.
(2 of 13) Brief facts of the case are that on 01.02.1984 at about 2 PM Onkar Singh Jhala, SHO, Police Station, Mangrol along with police force reached to Village Reejhiya for investigation in case No. 6/84 registered for the offence under Sections 452, 147, 148, 149 and 323 IPC. On the spot, he found that a dead body of Siya Ram S/o Dhana Lal Meena was lying in the 'Pol' of the house of Shri Kishan Meena. Where a report was made by Ram Prasad S/o Dhanna Lal, to the effect that yesterday at about 12:00 PM, on the canal side, Satyanarayn Dhankar gave beating to Ram Dayal Meena. Today, in the morning, his real brother Siya Ram was going to leave the cattle for grazing to the other pasture land near Talai and he was following his brother. Ghanshyam and Hemraj were coming from the forest land then at the entry point of the street, alongwith them, Ramchandra, Om Prakash, Hem Raj and Badri Lal who was brother in law of Ram Charan gave beating by Gadasi and Lathies.
Ram Charan was armed with 12 bore gun and Hemraj armed with a muzzle loading gun. After seeing Ram Charan, his brother Siyaram took U turn in apprehension of attack and tried to hide himself inside the house of Shri Kishan Meena to save his life. When Siyaram tried to peep outside, Ram Charan Dhakar opened fire targeting Siya Ram with a 12 bore gun which hit to the left side of the chest and left hand. Due to gun shot injury, Siyaram died on the spot. At the time of occurrence, Shri Kishan, Narayan, Mansa Ram and Latoor Meena were also present at the spot. Ram Charan had gone along with his brother Hemraj, Om Prakash and Badri Lal brother-in-law of Ram Charan, Brahma and Babu Lal. Badri Lal was armed with Dhariya. Brahma and Babu armed with lathies. When he tried to lift the body of Siya Ram, Brahma gave him a lathi blow on his left hand. After that Surendra came and (3 of 13) gave beating with lathies which hurt the middle finger of his left hand. Ram Charan along with his companions assaulted the complainant party and Ram Charan fired 12 bore gun on Siya Ram as a result of fire arm injury he died. It was further stated that all the Dhakars had encircled the village so the report could not be filed. On this, police started investigation for the offence under Sections 302, 307, 147, 148, 149 and 323 IPC and 3/25 of Arms Act.
During investigation, blood stained soil, simple soil, pieces of papers and empty cartridges were recovered. Punchnama of the dead body of the deceased was prepared. Post mortem was made of the dead body of the deceased. Accused persons were arrested. At the instance of accused persons, gun, dhariya and lathies were seized. The inquiry was conducted about use and functionality of 12 bore gun and a muzzle loading gun and their licenses. Challan against accused Ram Charan and Hemraj Dhankar was filed under Section 3/25 of Arms Act.
After hearing learned counsel for the parties, learned trial court framed charge against the accused persons for the offence under sections 148,302,307/149 and under section 3/25 of Arms Act. Accused pleaded not guilty and claimed trial. Prosecution in support of its case examined as many as 24 witnesses and exhibited 61 documents.
Accused appellant was examined under section 313 IPC wherein he stated that he had been falsely implicated in the matter. He further stated that on 01.2.1984 in the morning at about 8:00 AM he was looking after his father as he was suffering from paralysis and Badri, Ramesh and Chittar were also sitting with him. Door of the house was closed. Ram Prasad, Siya Ram, (4 of 13) Mansa, Ghanshyam, Ram Dayal, Hemraj and Latoor armed with Gadasi trespassed on his house. Six of them went inside and one Ram Prasad gave blows of Dhariya on his head and left hand. After that Badri was beaten and taking note of situation, he took out gun of his father and in his defence, opened fire in the air and then the assailants ran away. Krishna, Rupdha, Jaganath, Prahlad and Ghuma armed with Dhariya and Gadasi were standing outside the house.
After conclusion of the trial, the learned trial court convicted the accused appellant as stated above.
Mr. Biri Singh Sinsinwar Sr. Advocate learned counsel for the accused appellant argued that in the FIR names of Shri Kishan, Narayan, Mansharam and Latoor were mentioned to be as the eye witnesses of the incident but the trial court has not believed their testimony. The names of PW-10 Vidya and PW 11 Parvati were not disclosed as eye witnesses in the FIR and in statements of these two witnesses were recorded by the investigating officer after 18 days of incident on the ground that in the statement of witness Hemraj recorded under Section 161 Cr.P.C. names of these two witnesses had been disclosed. There is no reason to explain the delay of 18 days in examination of these two witnesses. The presence of these witnesses were also not shown in the site plan. But the trial court has wrongly relied on the evidence of PW10 and PW11.
He has further argued that injured-Hemraj was beaten severely and he was not in a position to witness the incident and the trial court has wrongly placed reliance on his statement.
Learned Sr. counsel further argued that the 12 bore gun (Article -4) recovered at the instance of the accused appellant has (5 of 13) not been proved to be a gun used in the incident and the accused appellant was acquitted for the offence under section 3/25 of the Arms Act. As per finding of the trial court, some other gun was used therefore the deceased Siyaram did not die due to gun shot injuries fired by Article-4. In this case, a muzzle loading gun was also recovered during investigation but it was not sent to the Forensic Science Laboratory for examination. From the site, a few pieces of wads used as 'Daat' were also recovered which could only be used for muzzle loading gun. There is no medical evidence that deceased Siyaram died due to 12 bore gun shot injuries. The nature of the injuries found on the dead body of Siyaram indicates that he died of the pellets fire shot by the muzzle loading gun. He further argued that trial court committed serious illegality in considering PW-10 Vidya and PW-11 Parvati as eye witnesses though their names were not included in the FIR. The persons who were named as eye witnesses have not been found to be eye witnesses by the trial court and their statements have been rightly disbelieved. The trial court held that Article 4 was not used in the crime and fired by the accused-appellant, the statements of eye witnesses that the Article 4 was fired by the accused in the incident is totally false. According to the FIR accused appellant was armed with a gun and was not holding a lathi. The prosecution has made improvements during trial to show that the accused was also armed with a lathi and the trial court convicted the accused appellant under Section 323 IPC for causing simple injuries to Hemraj. He further argued that there is no reliable and convincing evidence to hold the accused guilty under Section 302 IPC, the conviction and sentence of the accused appellant be set aside.
(6 of 13) On the other hand, learned Public prosecutor has opposed the arguments advanced on behalf of the accused appellant and supported the judgment of conviction and sentence awarded to the accused appellant.
Heard learned counsel for the parties and perused the relevant record.
Onkar Singh (PW-22) deposed that on 01/02/1984 he was posted as SHO Police Station Mangrol. For investigation in FIR No. 6/84 registered for the offence under Section 452 IPC he reached at Village Richhiya, where Ram Prasad Meena orally reported to him that accused appellant Ram Charan fired on his brother Siya Ram and he died on the spot. He further deposed that he found ample evidence of "Naka Bandi" made by the accused appellant at the place of occurrence, therefore, the complainant Ram Prasad could not approach the police to lodge the first information report in the police station. He seized blood smeared soil and dry simple soil from where the dead body was lying and from the place where the incident took place and prepared Fard (Ex. P/9 to Ex. P/14) accordingly. Panchnama is (Ex. P15), upon which E to F are his signatures. He seized cartridge 'daat' of pieces of paper which is Ex. P/27 and the Baniyan of the deceased. During the investigation, accused appellant Ram Charan who was in jail custody in case No. 7/84 gave information that a lathi had been put by him in his house. He also disclosed that 12 bore gun and empty cartridges were also lying in his house on the basis of information the 12 bore gun had been recovered. The recovery memo of 12 bore gun is Ex.P18.
Post mortem report (Exhibit P-30) of the deceased Siyaram shows that he received following ante-mortem injuries:-
(7 of 13)
1. Multiple punctured wound of gun shot present over the left side of chest and left upper arm, outer surface around the mammary gland. On chest- 67 hole of small ¼ size on upper arm 42 wound of ¼ ¼ "size
2. III, IV, V, VI, VII, VIII rib found fractured in multiple pieces on external appearance.
3. Whole gun shot, chharras scattered in small area of 1 feet x 1 feet and left side of chest & left upper arm outer surface. It shows that gun was shot from the distance of about 10 meters approximately.
4. Gun shot punctured wound 67 in no. on the left side around the mammary gland covering 1" x 6" area. Injured 2 pleural cavity full of blood.
5. Adjacent part of right lung to media tinum of left lung was injured due to charra's.
6. Whole lung got multiple puncture and collapsed due to gun shot, about 10 chharra recovered from the left lung.
7.Punctured due to gun shot injury from left and anterior side.
8.Whole heart destroyed from below and lateral side to the upper side. Left ventricle punctured causing big hole through and through of cardiac muscle.
8. Gun chharra also recovered from the diaphragm and upper portion of liver. Sample of lung, heart and piece of diaphragm taken for evidence.
9. Upper portion of liver found injured due to chharra of gun shot.
10. Total 70 charras recovered from the body, 67 from the chest and adjacent part and 3 from the left upper arm.
11. Gun shot injury and hemorrhage from the lungs, heart,etc. In the opinion of the Doctor, the cause of death was gun shot injury and hemorrhage from the lungs and heart etc. FSL report Ex.P/1 reveals that :
1. One 12-bore DBBL gun(w/1) from packet no. 11 is a serviceable firearm and had been fired some time before, it was received in the laboratory.
2. Based on microscopic examination, it is the opinion that one 12-bore cartridge case (c/1) from packet no. 8 has not been fired from 12-bore DBBL gun.
3. Lead pellets and wads from packet no. 9,10 and 11 are normally used in 12-bore cartridges.
4. The size of lead pellets contained in packet no.12 could be no.1.
PW-14 Mansaram deposed that the accused party after forming an unlawful assembly reached at the entry point of the street junction near the house of Sri Krishan. Siyaram was taking (8 of 13) the cows for grazing in the other pasture land and he stopped at the house of Sri Krishan after seeing the quarrel. Due to fear, he entered the house of Sri Krishan. When he tried to watch behind, Ram Charan armed with 12-bore gun fired on him which hit the left side of the chest of Siyaram. He fell down and died on the spot. In cross-examination, he deposed that police had recorded statements of Ram Prasad, Latur, Parvati Bai, Vidya Bai and other persons. On the same day, statements were recorded of all the persons and the police personnel remained for about one hour at the house of Sri Krishan. After that dead body was carried in matador to Mangrol. He further deposed that Ghanshyam and Hemraj were having enmity with him and they were watching the incident but did not intervene. He further deposed that the Sub- inspector prepared a site plan before the Deputy superintendent of police.
PW-16 Hemraj deposed that Ram Prasad and Mansharam reached at the place of incident after the incident of beatings and just after 5-6 minutes Siyaram was killed. Ram Prasad was not present at the place of incident. He further deposed that Satyaprakash, Dhariya, Om Prakash armed with wooden stick, accused Ram Charam armed lathi and loaded gun on his shoulder. Satyanaran inflicted Dhariya blow on left feet and Ram Charan inflicted wooden stick blow at his back.
As per injury report of Hemraj, he received the following injuries:
1. Lacerated wound 1"x¼"x¼" on the head left side 2"
left ear.
2. Lacerated wound 2"x¼"x¼" on the mid of the head transverse in position.
3. Bruise 4"x2½" red in color on the back of the level to in local swelling
4. Bruise 2"x2½" red in color local swelling on the back of right shoulder.
(9 of 13)
5. Bruise 2"x1½" red in color, locally swelling on the back of left shoulder.
6. Abrasion 1½" x½ superficial on the lateral margin of right forearm.
7. Abrasion ½" x½ superficial on the left wrist joint out surface
8. Lacerated wound 1"x½"x½" on the anterior surface of right fore leg.
PW-17 Ram Prasad deposed that he was present when Siyaram was shot dead and Hemraj was standing at Manna Das ka Chhabutra when Siyaram shot dead.
Mst. Vidhya (PW 10) deposed that at the time of incident, she was at home. Hemraj was beaten and Ramcharan opened fire on Siyaram with a 12 bore gun due to which he died on the spot. At that time, she and Smt. Parvati were also present. In cross- examination she stated that the gun of red colour was cartridge loadable. Gun was fired at a distance of about 20 feet. Gun was carried by the accused appellant in her presence from their house.
Smt. Parvati (PW 11) deposed that she knew Ramcharan, Hemraj, Satya, Om, Bhadri,Hadiya, Kaalia and Siyaram. The accused appellant Ramcharan opened fire with a 12 bore gun on the body of Siyaram. In cross-examination, she stated that the accused appellant was only in possession of the 12 bore gun. She could not state that how many pellets were fired but she stated that the pellets were scattered everywhere.
It is pertinent to note that at about 8 AM of 1/2/1984, accused appellant-Ramcharan S/o Shri. Ram Kalyan went to Police Station Mangrol, Kota where he orally stated that a quarrel took place in between his brother and one Ram Dayal Meena. Ram Prasad, Siya Ram, Mansa, Latoor, Ghanshyam, Kishan Lal and Ram Dayal resident of Richhiya came to his house. Ram Prasad was armed with Dhariya in his hand by which he inflicted injuries on his head and hand and remaining people entered in the nearby (10 of 13) houses. In defence, he fired in the air with his father's gun and all the assailants ran away. All the assailants after forming an unlawful assembly gave beatings to him with different weapons. On this, an FIR No. 6/84 (Ex. P/32), was registered for the offences under Sections 147, 148, 149, 452 and 323 IPC.
Incident in the present case has thus taken place all of a sudden at the spur of moment in heat of passion where the accused cannot be said to have come with pre-meditated mind. In this fact scenario, fire opened by Ram Charan hit the deceased causing his death. His act would fall in Exception 4 to Section 300 IPC and would therefore a culpable homicide not amounting to murder punishable under Section 304 Part-I IPC.
In case of Ramesh Kumar @ Toni AIR 2009 SC 2447, the Hon'ble Supreme Court held that culpable homicide is not amounting to murder if it is committed without pre-meditation in a sudden fight and passion upon sudden quarrel and when the offender have not taken undue advantage or acted in cruel or unusual manner. The paras Nos. 9 and 10 of the said judgment are as follows:
"9. We find that the prosecution story itself spells out that all these conditions are satisfied in the present case. As per the eye witnesses, PW. 8 and PW. 9, the incident had happened when the deceased accompanied by the two witnesses were passing through the vacant field of the accused, the appellant had abused him for having entered his field on which the deceased had also abused the appellant. It appears that it was after this altercation that the appellant inflicted a spade (kassi) blow on the head of the deceased. We also see from the prosecution evidence that though the fields of the two parties were adjacent to each other, no quarrel of any kind had earlier taken place. In this view of the matter, we are of the opinion that the case of the appellant would fall under exception 4 and be punishable under Section 304 Part I of the IPC as a single injury had been inflicted on the head of the deceased.
(11 of 13)
10. We, accordingly, allow this appeal and convert the conviction of the appellant from one under Section 302 IPC to Section 304 Part-I IPC and reduce the sentence from life imprisonment to seven years R.I. We also direct that if the accused has already undergone seven years of imprisonment, he shall be released forthwith, if not required in any other case."
It is also a well settled law that when the accused has taken the plea that he acted in self defence, the guilt of the accused is to be judged on the basis of the facts and circumstances of the particular case. The statement of accused under Section 313 CrPC can be used for appreciating evidence led by the prosecution to accept it or reject it.
Hon'ble the Apex Court in the case of Rampal Singh Vs. State of U.P. reported in 2012 Cri. L.J. 3765 has considered the distinction between culpable homicide and murder and in the facts of that case, Hon'ble the Apex Court has partly allowed the appeal and converted the conviction from under Section 302 I.P.C. to Section 304 Part (I) I.P.C. and awarded a sentence of ten years rigorous imprisonment. In the facts of that case, appellant shot at the deceased with his rifle and ran away.
In the case of Manjeet Singh Vs. State of Himachal Pradesh reported in (2014) 5 SCC 697, there was no intention to cause death and incident took place on the spur of moment and due to firing from the carbine the death was caused. Hon'ble the Apex Court has held that offence would fall under Section 304 I.P.C.
In the case of Jhaptu Ram Vs. State of Himachal Pradesh reported in (2014) 12 SCC 410 wherein the death was caused by firearm injury and Hon'ble the Apex Court in that background converted the offence from under Section 302 I.P.C. to Section (12 of 13) 304 Part (I) I.P.C. Hon'ble the Apex Court in paragraph No. 7 has held as under:-
"7. ............. There is no iota of evidence to show that there was any prior intention of the Appellant to kill the deceased. As per the medical and ocular evidence, there was only gun shot fired by the Appellant which proved to be fatal for deceased. More so, the prosecution failed to marshal any evidence to show that the gun was in his hand when the deceased entered his house. In such peculiar facts and circumstances of the case, we agree with the submissions advanced by Shri Sreyas, learned Counsel for the Appellant."
The recovery of weapon of offence from the possession of appellant Ram Charan has already been disbelieved by the trial court and he has been acquitted of the charge under Section 3/25 of the Arms Act.
Consequently, in view of discussion made above, the appeal is partly allowed and the conviction and sentence passed against the accused appellant Ram Charan for the offence under Section 302 IPC by the trial court is hereby altered to offence under Section 304 Part I IPC and sentence of life imprisonment awarded to him is hereby reduced to sentence for 10 years RI while maintaining fine as awarded by the learned trial court.
The impugned judgment is modified in the terms aforesaid. The sentence of Ram Charan has been suspended by this court vide order dated 28/9/1989. Thus he remained in jail for one year and 26 days. He is therefore directed to surrender immediately before the trial court, which will take him into custody and sent him to jail to serve out the remaining sentence of imprisonment. In case, the accused-
(13 of 13) appellant does not surrender within one month from the date of receipt of copy of this judgment, the trial court shall take necessary steps to take him into custody and send him into jail to serve out the remaining sentence of imprisonment. (GOVERDHAN BARDHAR),J (MOHAMMAD RAFIQ),J Om/31 Powered by TCPDF (www.tcpdf.org)