Girdhari And Ors. vs State Of Rajasthan on 10 November, 2004

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Rajasthan High Court
Girdhari And Ors. vs State Of Rajasthan on 10 November, 2004
Equivalent citations: RLW 2005 (2) Raj 1353, 2005 (2) WLC 164
Author: N Jain
Bench: S K Sharma, N Jain

JUDGMENT

N.K. Jain, J.

1. This appeal is directed against the judgment and order dated 12th May, 2000 passed by Shri R.P. Singh, Sessions Judge, Sawai Madhopur, in Sessions Case No. 76/99 whereby all the accused appellants have been convicted and sentenced for the offence under Section 302/34IPC to undergo imprisonment for life and a fine of Rs. 1,000/- in default of payment of fine to further undergo for simple imprisonment of one month.

2. The brief facts of the case that on the basis of Parcha Bayan of Smt. Jagani (Ex.P-15) a First Information Report No. 169/99 (Ex.P-20) was registered at Police Station Chauth Ka Barwada, District Sawai Madhopur wherein it was alleged that she is illiterate. She came one day prior to Rakhi to her father’s village Bandha. Her elder brother Ramvilas had died about 9 months ago and her father Kanhaiya Lal had also died about two and half months ago. Therefore, she came on the festival of Rakhi. She further stated that her younger brother Babu was not available at the house, therefore, she could not tie Rakhi on the hands of his brother Babu. His brother Babu came in the evening, she prepared food for his brother and thereafter Babu and her husband both took meals. Thereafter, they all were talking in the late night. She also slept. She further stated that all of sudden, she heard hue and cry and came out from the house and saw that her brother Babu was tied with the tree in front of their house and her uncle Girdhari, his elder son Fotu, younger son Ram Prakash and aunt Narbada all were beating to him by lathies and Dandas. She told them not to kill Babu and at the most they may punish Babu by cutting his legs. Some other persons namely Ramji Lal Meena and Bhajan Meena and other persons of the village came at the place of occurrence and told not to kill Babu but his uncle and his sons continued beating to his brother. Thereafter Babu got free at about 7 O’clock in the morning but he died at about 9 A.M.

3. On the basis of this Parcha Bayan a case under Section 302, 342/34 IPC was registered and investigation commenced. During investigation the police prepared sight plan and got the deceased medically examined. The post mortem report was also prepared. After completion of investigation the police filed challan against all the accused persons for the offences under Section 302, 342/34 IPC. The case was committed for trial.

4. Learned Trial Court framed charges against the accused persons for the offence under Section 302 IPC and in alternative under Section 302/34 IPC. The accused denied the charges and claimed trial.

5. In support of the case, the prosecution examined 11 witnesses PW 1 to PW 11 and produced documentary evidence Ex.P1 to Ex.P28. Thereafter the statement f the accused persons were recorded under Section 313 Cr.P.C. wherein accused person stated that prosecution case is false and they have falsely been implicated by the complainant party. The accused Girdhari stated that deceased Babu was beaten by his other colleagues because of quarrel on division of theft articles stolen by them. He further stated that he was not present as he had gone to forest. He took a plea of alibi. The other accused Ram Prakash, Fotu and Smt. Narbada also stated that they were not present at the time of occurrence.

6. The learned Trial Court, after hearing both the parties vide its impugned judgment and order convicted and sentence the accused appellants for the offence as mentioned above.

7. Learned counsel for the appellants has argued that accused appellant Girdhari is uncle of deceased Babu and Ram Prakash and Fotu are sons of Girdhari. Smt. Narbada is a wife of Girdhari and the entire family has falsely been implicated in the present case. He further argued that PW-4 Smt. Ram Pyari who is mother of the deceased has admitted in her cross examination that he husband and elder son died few months ago. The deceased Babu aid not come even to attend funeral of her husband. Wife of Babu left the house as Babu used to drink liquor and used to beat her. PW4 has also admitted that Babu used to commit the offence of theft in the village and there was no control on deceased Babu, she also stated that her husband and elder son died due to shock because of offences committed by deceased Babu. She also stated that she is continuously ill because of wrong action of Babu. The other village were also present at the place of occurrence but no one came to rescue Babu. PW 4 Ram Pyari further stated that who gave beating on the person of Babu is not known to her. The night was dark. The learned counsel for the appellants submit that even if a case of the prosecution is accepted, it is clear that there was no intention to kill Babu. The object, who can be gathered from the evidence on record, is at the most, to given lesson and punish Babu so he may not commit any offence in the village in future.

8. PW 8-Smt. Jagani is sister of deceased. She admitted in her cross examination that Babu had stolen she-goats of her uncle Girdhari and had sold. She further admitted that her mother was ill, she admitted that the entire villagers were present at the place of occurrence and no one came in rescue. She also admitted that Babu did not attend the funeral of her father. All the customs of her father, after his death, were performed by her uncle Girdhari. PW 8 further admitted that all the villagers used to tell her uncle Girdhari about offences committed by Babu. She also admitted that at the time of beating she also told that the hands and begs of Babu be broken. Her father and elder brother all were annoyed with Babu. Babu used to drink liquor everyday. Babu used to commit theft in village also.

9. Learned counsel for the appellants further submits that PW 6 Dr. Malkhan Singh who conducted the post-mortem report found the following injuries:-

1. Lacerated wound 1″ x 1/2′ x 3/4″ nose both both eyes.

2. Bruise 2-1/2″ x 2-1/4″ Lt. side upper arm betn elbow and wrist joint.

3. Bruise 2-3/4″ x 2-1/2″ Rt. side upper arm betn elbow and wrist joint.

4. Bruise 1-1/2″ x 1-1/4″ Rt. side chest.

5. Bruise 1-3/4″ x 1-1/3″ Lt. side chest.

6. Bruise 3″ x 1-3/4″ Lt. side shoulder posteriorly.

7. Bruise 2-1/4″ x 1-1/2″ Rt. side shoulder posteriorly.

8. Bruise 3-1/3″ x 2-3/4″ ltd. side lower leg Anteriorly 1- 1/2″ below knee joint.

9. Bruise 3-1/3″ x 2-3/4″. It. side lower leg thigh betn Hip and knee joint.

10. Bruise 1-1/5″ x 1-1/7″ It. side lower leg Anteriorly 2- 1/2″ above Ankle joint.

11. Bruise 1-1/2″ x 1-1/4″ rt. side lower leg Anteriorly 2- 3/4″ above Ankle joint.

12. Bruise 2-1/4″ x 1-1/6 It. side body laterally at 7 & 8 rib.

13. Bruise 2-1/5″ x 1 -3/4″ Rt. side body laterally 9th & 10th Rib.

10. Faccal material pass through Rectum. All injuries Ante mortem in nature.

11. On the basis of above injuries the learned counsel for the appellants submits that these injuries were not sufficient to cause death in the ordinary cause of nature and from the nature of injuries it is clear that it was a case of culpable homicide not amounting to murder. PW6 Dr. Malkhan Singh in his cross examination has admitted as under:-

^^dksbZ Hkh pksV O;fDrxr :i ls e`R;q dk dkj.k
ugha gks ldrh A ;s pksVs ‘kjhj ds fdlh Hkh ckbZVy ikVZ ij ugha gSa A ukd dk
QSDpj dEikm.M QsDpj gS A eSus bldk foljk ugha fy;k u gh eSaus dsehdy tkap ds fy,
fHktok;k A——- ;g ckr lgha gS fd vykok ckbZVy ikVZ ds ‘kjhj ds Hkkx esa QsDpj
vk tk;s rks oks e`R;q ds dkj.k ugha gk ldrs A**

                                               

12. On the basis of above medical report and statement of PW6 Dr. Malkhan Singh the learned counsel submits that no injury was sufficient to cause death in the ordinary course of nature. There was no injury on the vital part of the deceased. Therefore, in any event the case of the prosecution does not travel beyond the scope of Section 325 IPC or at the most under Section 304 Part-II IPC.

13. On the other hand the learned Public Prosecutor has opposed the submissions made by learned counsel for the appellants and submits that the accused appellant have rightly been convicted and sentenced by the Trial Court. The learned Public Prosecutor supports the impugned judgment and order. The learned Public Prosecutor placed reliance on a judgment in the case of State of Andhra Pradesh v. Rayavarapu Punnayya and Anr., AIR 1977 SC 45. He submits that even as per medical report in the present case, the conviction of the accused persons under Section 302 IPC is just and reasonable and this in not the case wherein this Court should interfere in the order of conviction and sentence passed by Trial Court.

14. We have heard submissions of both the parties and examined the entire record of the case. So far as the accused appellant Smt. Narbada is concerned, no prosecution witnesses have said that Smt. Narbada also gave beating on the person of Babu. PW4 Smt. Ram Pyari states that all the accused persons tied Babu with tree and gave beating. PW8 Smt. Jagani states that her mother Ram Pyari was not well. PW8 Smt. Jagani stated that at the time of beating she herself told that the hands and legs of Babu should be broken. PW4 & PW8 both state that the entire villagers were present at the time and place of the occurrence and no one intervened. Babu was notorious, Babu used to take liquor and commit offences. All the villagers used to make a complaint of Babu to accused Girdhari who was eldest in the family. PW4 and PW8 both have admitted that father and elder brother of Babu were not happy because of wrong actions of Babu and due to it they both died. PW8 and PW4 have also admitted that Babu even did not attend the funeral ceremony of his father. From the above statements it is clear that there is no specific allegations against accused Smt. Narbada. The statement of the prosecution witnesses are self-contradictory and contrary to each other. The prosecution has failed to prove the case beyond reasonable doubt against Smt. Narbada. Therefore, we acquit the accused Smt. Narbada from offence under Section 302/34 IPC.

15. So far as remaining three accused persons Girdhari, Ram Prakash and Fotu are concerned, it is clear from the statement of the prosecution witnesses that Girdhari was real uncle of deceased Babu and he was the eldest in the family. The father and elder brother of Babu had already been died. All the family members were not happy with Babu as he used to commit offence day to day in the village and all the villagers used to make complaint against him to Girdhari being eldest in the family. Smt. Ram Pyari mother of the deceased also admitted that she is not feeling well because of wrong habits and actions of Babu. She has also admitted that her husband and elder son died due to shock of offence committed by Babu. It appears from the statement of the prosecution witnesses that Girdhari, being eldest in the family, wanted to give a lesson to Babu for not committing any further offence in the village and for the sad purpose he wanted to give some beating. There was no intention to commit culpable homicide. A bare perusal of injury report and post mortem report and also the statement of PW6 Dr. Malkhan Singh also show that out of 13 injuries, 12 injuries were bruise and there was only injury No. 1 which was lacerated would at nose.

16. The Hon’ble Supreme Court in Shri Jagannath and 2 Ors. v. State of Uttar Pradesh, JT 1995(1) SC 553, held that common intention of the appellants to cause death has not been established beyond all reasonable doubts, it has been conclusively established that their intention was to cause injuries with deadly weapon. The Hon’ble Supreme Court held that it would be hazardous to place implicit reliance upon such a statement. The Apex Court set aside the conviction under Section 302/34 IPC and convicted the accused persons under Section 324 read with Section 34 IPC to two years imprisonment.

17. The Hon’ble Supreme Court in Ramu v. State of U.P., JT 2004 (2) SC 289, held as under:-

“We also agree with the High Court that the injury in question was caused during a melee in which 6 persons took part therefore in our opinion on the facts and circumstances of this case, the act of the appellant in causing injury to the deceased which led to his death, cannot be the one which could be construed even as an act of culpable homicide not amounting to murder. Therefore, to that extent in our opinion the High Court feel in error in holding the appellant guilty for an offence under Section 304 IPC. In our considered opinion of the facts and circumstances of this case the act of the appellant is one of causing grievous hurt with a deadly weapon which is punishable under section 326 IPC”.

18. So far as the case of State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. (supra), cited by learned Public Prosecutor is concerned, it is clear from the para 29 of the said judgment that in the said case, the Doctor noted in the post- mortem examination report that the heart of the deceased was found full of clotted bood. Again in injury No. 6 which also was an internal fracture, the bone was visible through the would. In the said case PW 11 who was the first Medical Officer to examine the injuries of the deceased had noted that there was bleeding and swelling around injury No. 6 which was located on the left leg 3 inches above the ankle. Dr. Sarojini, PW12, found fracture of the left tibia underneath this injury. There could therefore, be no doubt that this was a compound fracture. PW11 found bleeding from the other abraded injuries, also. PW11 also advised immediately removal of the deceased to the bigger Hospital at Guntur. There, also, Dr. Sastri finding that life in the patient was ebbing fast, took immediate, two-fold action. First, he put the patient on blood transfusion. Second, he sent an intimation for recording his dying declaration. A Magistrate PW 10 came there and recorded the statement. There are all tell-tale circumstances which unerringly show that there was substantial haemorrhage from some of the injuries involving compound fractures. This being the case, there was absolutely no reason to doubt the sworn sworn word of the Doctor that the cause of the death was shock and haemorrhage. On the basis of above facts and circumstances, the Hon’ble Supreme Court held that all the conditions of Clause 3 had been established and the offence committed by the accused was murder, notwithstanding the fact that the intention of the accused to cause death has not been shown beyond doubt. So far as the facts of the present case which are borne out from the FIR, statement of PW4 and PW8 and in view of the injuries as reproduced above also, the statement of the Doctor PW6 that all injuries were not sufficient to cause death in the ordinary course of nature, the said judgment of the Hon’ble Supreme Court is not applicable in the facts and circumstances of the present case. However, looking to the nature of injury coupled with the statement of prosecution witnesses, we are not inclined to accept the submission of the counsel for the accused the offence does not travel beyond the scope of 325 IPC. The assault on the deceased was not premeditated or calculated more. The Exception IV to Section 300 IPC is attracted in the present case and the appellants can be held guilty under Section 304 Part-II IPC. Therefore, in the facts and circumstances of the case, while setting aside the conviction and sentence of the accused appellants under Section 302 read with Section 34 IPC, we convict the accused appellants Girdhari, Ramprakash and Fotu under Section 304 Part II read with Section 34 IPC.

19. For there reasons we dispose of the appeal in following terms:-

i) We allow the appeal of appellant Smt. Narbada and set aside her conviction and sentence awarded by the impugned judgment. We acquit her of the charge under section 302/34 IPC. The appellant Narbada is on bail, she need not surrender and her bail bonds stands discharged.

ii) We partly allow the appeal of appellants Girdhari, Ram Prakash and Fotu and instead of section 302 IPC, we convict each of the appellants under Section 304 Part II read with sections 34 IPC. Since the appellants have been in confinement since September, 1999, the ends of justice would be met in sentencing them to the period already undergone by them in confinement. The appellants Girdhari, Ram Prakash and Fotu, who are in jail shall be set at liberty forthwith, if not required to be detained in any other case.

iii) The impugned judgment of learned trial Judge stands modified as indicated above.

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