Rajasthan High Court - Jaipur
Ramesh Chand vs State Of Rajasthan Through Pp on 29 January, 2019
Author: Munishwar Nath Bhandari
Bench: Munishwar Nath Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No.324/2015
Ramesh Chand S/o Bhanwar Lal, by caste Gurjar, R/o Bajrang
Garh, Police Station Nahargarh, District Baran (Rajasthan)
(Accused presently confined in District Jail, Baran)
----Accused-Appellant
Versus
The State of Rajasthan through P.P.
----Respondent
For Appellant(s) : Mr. NA Naqvi, Sr. Adv. with Mr. Nawab Ali Rathore For Respondent(s) : Mrs. Sonia Shandilya - PP HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE BANWARI LAL SHARMA Judgment 29/01/2019 By this appeal, a challenge is made to the order dated 23 rd February, 2015, passed by the Additional Sessions Judge in Session Case No.27/2012. The accused-appellant was convicted for offence under Section 302 IPC and sentenced to life imprisonment with fine of Rs.10,000/-, in case of default to pay fine, to further undergo two months simple imprisonment. ARGUMENTS OF THE ACCUSED-APPELLANT:
Learned counsel for appellant submits that an occurrence took place at the spur of the moment and without pre-meditation where Kailabai died. The appellant had no motive to cause injuries to deceased-Kailabai. Ignoring the aforesaid, the trial court (Downloaded on 05/06/2021 at 11:12:19 PM) (2 of 12) [CRLA-324/2015] convicted the accused-appellant for offence under Section 302 IPC.
The accused-appellant is said to have caused one injury and the weapon used for it was a "lathi" which usually remains available in the village. In absence of repeated blows by the accused-appellant, a case would fall in one of the Exceptions given under Section 300 IPC. Accordingly, the accused-appellant could have been convicted for offence under Section 304 Part-I instead of Section 302 IPC.
Learned counsel for appellant has further submitted that PW9-Banwarilal and PW16-Gopal have not supported recovery of weapon at the instance of accused. In view of the above, the accused-appellant should have been acquitted of the offence under Section 302 IPC.
It is also stated that witnesses produced by the prosecution were interested witnesses. The prosecution did not produce any independent witness though named in the FIR. The other eye- witnesses turned hostile, thus case of the prosecution was not supported by them. The trial court ignored the aforesaid also. It believed testimony of interested witnesses to convict the appellant.
It is further submitted that even as per statement of PW1- Ladbai, the intention of appellant was not to cause injuries to deceased-Kailabai but may be to others. There was no motive or enmity with Kailabai so as to show pre-meditation for the occurrence. The aforesaid aspect has also been ignored by the trial court.
Learned counsel for appellant submits that that there was delay in lodging an FIR. The delay is of more than 18 hours and (Downloaded on 05/06/2021 at 11:12:19 PM) (3 of 12) [CRLA-324/2015] remained unexplained. It is fatal and is, otherwise, used to implicate the accused after making out a new story. The scriber of the FIR was not produced by the prosecution. Thus, for the aforesaid reason also, the order of trial court deserves to be set aside with acquittal of the accused-appellant.
Learned counsel for appellant has given reference of the following judgments for conviction of the accused-appellant under Section 304 Part-I IPC instead of Section 302 IPC:
1. Chenda Alias Chanda Ram Vs. State of Chhattisgarh, reported in (2013) 12 Supreme Court Cases 110
2. Rampal Singh Vs. State of Uttar Pradesh, reported in (2012) 8 Supreme Court Cases 289
3. Vadla Chandraiah Vs. State of A.P., reported in (2006) 13 Supreme Court Cases 587
4. Balu S/o Onkar Pund and ors. Versus State of Maharashtra, reported in (2015) 3 Supreme Court Cases 409
5. Pappulal Vs. State of Rajasthan, reported in 2014(4) Cr.L.R. (Raj.) 1613]
6. Chaitu and ors. Vs. State of Uttar Pradesh, reported in (2014) 11 Supreme Court Cases 218
7. Sudhakar Vs. State of Maharashtra, reported in (2012) 9 Supreme Court Cases 725
8. Ramanlal and anr. Vs. State of Haryana, reported in (2015) 11 Supreme Court Cases 1 (Downloaded on 05/06/2021 at 11:12:19 PM) (4 of 12) [CRLA-324/2015]
9. Dinesh Yadav Vs. State of Jharkhand, reported in 2017 Cr.L.R. (SC) 288
10. Arjun & Anr. Etc. Vs. State of Chhattisgarh, reported in 2017 Cr.L.R. (SC) 183
11. Ramu Vs. State of U.P., reported in AIR 2004 Supreme Court 1605
12. Budhi Singh Vs. State of Himachal Pradesh, reported in (2012) 13 Supreme Court Cases 663
13. Vijay Singh and Anr. Vs. State of Madhya Pradesh, reported in (2014) 12 Supreme Court Cases 293
14. Ahmed Shah and Anr. Vs. State of Rajasthan, reported in (2015) 3 Supreme Court Cases 93.
ARGUMENTS OF THE SIDE OPPOSITE:
Learned Public Prosecutor has contested the appeal. She submitted that occurrence was caused with pre-meditation. The accused came equipped with weapons and attacked on the deceased and the injured all of sudden. It is, thus not correct to state that occurrence took place at the spur of the moment. The accused-appellant caused head injury to deceased-Kailabai. The said injury was the cause of death.
It is not a case where the occurrence took place after a scuffle between the parties, rather, complainant party was unequipped while the accused party came equipped with weapons. If the appellant had no intention to cause injuries to Kailabai but to others then Section 301 IPC would apply. The intention to cause (Downloaded on 05/06/2021 at 11:12:19 PM) (5 of 12) [CRLA-324/2015] injury to others and in that process, if somebody else receives injury would not bring the case in one of the exceptions given under Section 300 IPC but it would be under Section 302 IPC. It is also not if repeated blows are not given. In the instant case, the deceased had received seven injuries, out of it, there were three fractures. In view of the above, the case would not fall under one of the exceptions for conviction of the accused-appellant under Section 304 Part-I IPC.
It is also stated that PW9-Banwarilal and PW16-Gopal though turned hostile but in the cross-examination they admitted their signatures on Exhibit-P11 and Exhibit-P12 for recovery of weapon and the site map. In the cross-examination, PW9-Banwarilal shown his unawareness about the purpose for which the document got signed by the police. PW16-Gopal has stated about his signature on the blank paper, thus he has not supported recovery of weapon.
PW13-Anil Pandey has proved recovery of weapon vide Exhibit-P11 and the same is sufficient to prove recovery and otherwise PW9-Banwarilal has not denied his signature on the recovery memo, Exhibit-P11, for recovery of a "lathi".
In view of the above, the recovery of weapon cannot be disbelieved in reference to statement of PW9 and PW16 when it has been proved by PW13-Anil Pandey. A prayer is, accordingly, to dismiss the appeal. It is moreso when a case would not fall in any of the exceptions given under Section 300 IPC so as to convict the accused-appellant for offence under Section 304 Part-I IPC. FINDING OF THE COURT:
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(6 of 12) [CRLA-324/2015] We have considered rival submissions made by learned counsel for the parties and scanned the matter carefully.
It is a case where on 31st December, 2011, the Police received an information on wireless about admission of deceased and the injured in Government Hospital, Baran. They sustained injuries out of beating given by someone. The Sub-Inspector of the Police was sent to the hospital where complainant-Ladbai was found present. She gave written report to the Police at around 7.15 AM for the occurrence which took place on previous day at 7.00 PM. It was stated that accused-Ramesh Chand along with Devraj and Durgalal came equipped with "lathi" and "sariya".
Ramesh Chand caused head injury to Kailabai (deceased) by a "lathi" while Devraj caused injury to deceased-Kailabai by an iron rod and Durgalal caused injury to deceased by a "lathi". The injuries by Devraj and Durgalal were on non-vital part. The occurrence was seen by Babulal, Gobarilal, Bheemraj, Kanvarlal and Chhitarlal. The occurrence took place on account of a dispute of land. After the occurrence, the accused ran away.
On the written report, an FIR bearing No.1/2012 was registered for offences under Sections 302, 323 read with Section 34 IPC.
After investigation, the police filed charge sheet against accused-Ramesh Chand for offences under Sections 302, 323 read with Section 34 IPC before Judicial Magistrate, Kishanganj and against Devraj (Juvenile) before the Juvenile Justice Board, Baran.
The trial court framed charges against accused-appellant for offence under Section 302 IPC and explained to him. The accused denied the charge thus trial commenced.
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(7 of 12) [CRLA-324/2015] The prosecution produced sixteen witnesses and twenty three documents to support its case. The statement of the accused was recorded under Section 313 Cr.P.C. He did not lead evidence in defence. The trial court, after marshalling the evidence, convicted the accused-appellant for the offence under Section 302 IPC.
The prosecution produced PW1-Ladbai to prove its case. Ladbai is an injured eye-witness to the occurrence. She stated that accused-appellant came along with Devraj and Durglal and caused head injury to deceased-Kailabai and injury to her. After hearing a noise, others came on the place of occurrence. The said witness has proved site map, Exhibit-P12 and recovery of blood smeared soil, Exhibit-P7 and piece of bangles, Exhibit-P3. The said witness was extensively cross-examined but her statement could not be demolished.
The said witness has further stated that other accused had also given beating to her and Kailabai (deceased). When she shouted, Babulal came on the place of occurrence. On account of head injury to deceased-Kailabai, Hargovind called Dwarkalal. He called an ambulance and took deceased-Kailabai and her to a hospital. Kailabai died after sometime.
The prosecution produced PW2-Sanju Bai, who is a minor. She is daughter of Ladbai. She has stated that almost ten months back, she along with Hargovind, Ladbai and Kailabai were at Bajrangarh. At around 7.00 PM, when they were sitting in front of their house, Ramesh, Devraj and Durga came all of sudden eqipped with "lathi" and "sariya".
Ramesh caused head injury to Kailabai by a "lathi", whereas, Devraj, having "sariya", caused injury on her feet. When her (Downloaded on 05/06/2021 at 11:12:19 PM) (8 of 12) [CRLA-324/2015] mother came to save, she was also given beating. On shouting, Chhitarmal, Babulal and Bheemraj came on the scene of occurrence. She had identified accused-Ramesh in the court.
It is also stated that the deceased and the injured were taken to hospital in the ambulance. The said witness, thus corroborated the statement of PW1-Ladbai.
PW3-Dwarkalal was also produced by the prosecution but he is not an eye-witness. He has proved the site map, Exhibit-P2, Panchayatnama of dead body, Exhibit-P4, seizure memo of blood smeared soil, Exhibit-P7 and seizure memo of pieces of bangles, Exhibit-P8. He has further stated that Kailabai (deceased) was taken in the ambulance to hospital at Baran. The injured-Ladbai described the incidence. The accused-Ramesh caused head injury to deceased-Kailabai, whereas, other accused caused injuries to deceased and the injured.
PW4-Hargovind is again an eye-witness and corroborated the statement of PW2-Sanju Bai. He has also made specific allegation against accused-Ramesh for the head injury to deceased-Kailabai, whereas, other accused caused injuries to the injured and deceased.
The prosecution produced three eye-witnesses, out of it, PW6-Chhitarmal and PW8-Babulal turned hostile, thus they have not supported the prosecution case.
PW11-Bhanwarlal Gujar and PW12-Rajendra proved seizure memo of pieces of bangles, Exhibit-P3 and blood smeared soil, Exhibit-P7. PW14-Banshilal has also proved the documents produced by the prosecution.
PW10-Dr. Jagdishprasad has proved post-mortem report, Exhibit-P13 and described the injuries. The deceased received (Downloaded on 05/06/2021 at 11:12:19 PM) (9 of 12) [CRLA-324/2015] seven injuries, out of it, first injury was on the head going upto the cheek. The injuries to the deceased have corroborated the statements of eye-witnesses. The accused-Ramesh said to have caused head injury to Kailabai (deceased). The aforesaid injury has been proved in the post-mortem report.
Learned counsel for appellant has stated that one witness has named two accused for causing head injury to deceased- Kailabai, thus his statement should not have been believed. We find that all the eye-witnesses named accused-Ramesh for causing head injury, thus we are unable to accept the argument of learned counsel for appellant. If statement of one witness is ignored, other eye-witnesses have supported the prosecution case.
PW13-Anil Pandey is an Investigating Officer. He has proved all the documents produced in evidence. In view of the above, prosecution has brought evidence to prove its case beyond doubt.
Learned counsel for appellant has stated that case does not travel beyond Section 304 Part-I IPC, as the occurrence took place at the spur of the moment. The accused-appellant had no intention to cause culpable homicide amounting to murder. The prosecution could not prove pre-meditation of the accused. The motive for occurrence is also missing.
It is also stated that accused-appellant had no common intention to cause injuries to deceased-Kailabai, rather, it may be to others but on account of intervention of deceased, the injuries were received by her.
We have considered all those arguments and find that as per statements of eye-witnesses, the occurrence did not take place at the spur of the moment, rather, the appellant came with pre- meditation. The injured and the deceased were sitting in front of (Downloaded on 05/06/2021 at 11:12:19 PM) (10 of 12) [CRLA-324/2015] their house and all of sudden, the accused party came equipped with "lathi" and "sariya". They caused injuries to the deceased and the injured. Hence, pre-meditation of the accused is proved and otherwise, the occurrence did not take place at the spur of the moment.
In view of the above, the case would not fall in one of the exceptions given under Section 300 IPC. It is not even for the reason that appellant had no intention to cause injuries to the deceased but to others. In that case, Section 301 IPC comes in play. If the appellant had no intention to cause injuries to the deceased but to others, the case would fall under Section 301 IPC for conviction of accused-appellant for offence under Section 302 IPC.
It is also stated by learned counsel for appellant that no repeated blows were given to the deceased with an intention to kill deceased (Kailabai). We find that appellant caused head injury to the deceased by a "lathi" and, in all, seven injuries were received by the deceased.
In view of the above and looking to the fact that injury on the head was caused by accused-appellant knowing it well that it may cause death, thus a case would not fall for conviction of the accused-appellant for offence under Section 304 Part-I or Part-II IPC.
Learned counsel for appellant further stated that no independent witness was produced and few eye-witnesses were declared hostile. We have considered aforesaid aspect also and find that merely for the reason that eye-witnesses present at the place of occurrence are relatives and known to the deceased. Their testimony cannot be disbelieved.
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(11 of 12) [CRLA-324/2015] In the instant case, PW1-Ladbai is not only an eye-witness but injured witness and proved the prosecution case. Her testimony cannot be disbelieved. It is moreso when her statement has been supported by other eye-witnesses i.e. PW2-Sanjubai, PW4-Hargovind and PW5-Amritlal. It is merely for the reason that few eye-witnesses turned hostile, it cannot mean that testimony of other witnesses to be disbelieved.
In view of the above, we do not find any ground to accept any of the arguments raised by learned counsel for appellant. He has cited various judgments of the Supreme Court and the High Court. It is to show that present case does not travel beyond Section 304 Part-I and Part-II IPC.
We have considered all the judgments cited by learned counsel for appellant. The judgments (supra) have been given on their own facts. If the occurrence would have taken place under sudden provocation, the court could have very well considered it to be under one of the exceptions given under Section 300 IPC or it is without pre-meditation.
In the instant case, we have recorded our finding that the occurrence did not take place at the spur of the moment, rather, the appellant came equipped with weapon and caused injuries to the deceased and the injured. Pre-meditation has been proved by the prosecution. It has produced number of eye-witnesses. As per Section 134 of the Indian Evidence Act, the number of witnesses are not relevant to prove the fact. It can be even one witness and in this case, prosecution has otherwise brought more than one witness to prove its case.
In the instant case, recovery of the "lathi" has been made on the disclosure of accused-appellant and otherwise, PW9-Banwarilal (Downloaded on 05/06/2021 at 11:12:19 PM) (12 of 12) [CRLA-324/2015] and PW16-Gopal though turned hostile but admitted their signatures on Exhibit-P11 and Exhibit-P12 for recovery of weapon and the site map. PW16-Gopal, however, stated about his signature on the blank paper but such a statement has not been made by PW9-Banwarilal. The recovery of weapon has also connected the accused-appellant with the crime. Taking into consideration the aforesaid, we do not find that a case is made out to cause interference in the order of the trial court.
Accordingly, appeal fails and is hereby dismissed.
(BANWARI LAL SHARMA),J (M.N. BHANDARI),J
FRB
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