{"id":31505,"date":"2009-04-22T00:00:00","date_gmt":"2009-04-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nimba-ram-ors-vs-state-on-22-april-2009"},"modified":"2016-10-06T11:24:13","modified_gmt":"2016-10-06T05:54:13","slug":"nimba-ram-ors-vs-state-on-22-april-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nimba-ram-ors-vs-state-on-22-april-2009","title":{"rendered":"Nimba Ram & Ors vs State on 22 April, 2009"},"content":{"rendered":"
Rajasthan High Court – Jodhpur<\/div>\n
Nimba Ram & Ors vs State on 22 April, 2009<\/div>\n
                                 1\n\nIN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN\n\n                         AT JODHPUR\n\n                        J U D G M E N T\n\nNimba Ram & ors.                 Vs.          State of Rajasthan\n\n             D.B.CRIMINAL APPEAL NO.468\/2002\n             against the judgment dt.18.6.02\n     Passed by the learned Addl.Sessions Judge, Sojat,\n               in Sessions Case No.28\/1999.\n\nDate of Judgment:                               22 n d April, 2009\n\n                          P R E S E N T\n\n           HON'BLE MR.JUSTICE A.M.KAPADIA\n        HON'BLE MR.JUSTICE DEO NARAYAN THANVI\n\n\nMr.D.S.Udawat, for the appellants.\nMr.K.R.Bishnoi, Public Prosecutor.\n\nBY THE COURT : (PER THANVI J.)<\/pre>\n
1.    This is an appeal against the judgment of the learned<\/p>\n
Additional   Sessions   Judge,       Sojat   Camp   Jaitaran,   Pali,<\/p>\n
dt.18.6.2002, whereby he convicted accused appellant Sukha<\/p>\n
Ram of the offences u\/ss.148 & 302 IPC and rest of the accused<\/p>\n
appellants viz; Nimba Ram, Chautha Ram, Teja Ram, Dayal,<\/p>\n
Mana Ram and Shrawan of the offences u\/ss.148 and 302 read<\/p>\n
with 149 IPC. For the offence u\/s.148 IPC, each of the accused<\/p>\n
appellants was sentenced to undergo one year’s R.I. alongwith a<\/p>\n
fine of Rs.1000\/- & in default, to further undergo one month’s<\/p>\n
R.I. Accused Sukha Ram u\/s.302 and rest of the accused
\n                                 2<\/span><\/p>\n
appellants u\/s.302 read with 149 IPC were sentenced to undergo<\/p>\n
life imprisonment together with a fine of Rs.5000\/- and in<\/p>\n
default, to further undergo six months’ R.I. All the substantive<\/p>\n
sentences were ordered to run concurrently. Out of the amount<\/p>\n
of fine to be recovered from all the accused, Rs.25,000\/- was<\/p>\n
ordered to be paid to wife of deceased Chandra Ram.<\/p>\n
2.   Brief facts leading to this appeal are that on 24.2.99, the<\/p>\n
complainant Narayan filed a written report, Ex.P.1 that on that<\/p>\n
day in the morning, he alongwith Bhanwar Singh went from<\/p>\n
village Patan to D.L.F.Mines and came back at 10 AM. When they<\/p>\n
reached near the `Hathai’ (platform for gossiping) of the village,<\/p>\n
they were told by Raju that his brother Chandra Ram was being<\/p>\n
beaten at the well of Narayan. Upon this, they reached on the<\/p>\n
spot, where they saw their sister Shravni weeping and also<\/p>\n
noticed accused Sukha Ram with axe and rest of the accused<\/p>\n
appellants with lathis beating Chandra Ram. On seeing them, the<\/p>\n
accused party ran away from the spot. Accused appellants<\/p>\n
Chandra and Shravan were empty handed but they were giving<\/p>\n
fist blows. Papudi (PW 2) was also present there. According to<\/p>\n
the F.I.R., the accused appellants killed Chandra Ram and threw<\/p>\n
the dead body near the bushes. On this report, the police<\/p>\n
registered a case u\/ss.302 and 148 IPC and commenced<\/p>\n
investigation. During investigation, the police recovered one axe
\n                                     3<\/span><\/p>\n
from accused Sukha Ram and lathis from rest of the accused<\/p>\n
appellants. The recovery of blood stained clothes and soil was<\/p>\n
also made, which were sent for chemical examination. After<\/p>\n
investigation, the police filed challan against the above seven<\/p>\n
accused appellants but the police left accused Chandra. The<\/p>\n
learned Magistrate committed the case to the Court of Sessions,<\/p>\n
where the charges were framed. Accused Sukha Ram was<\/p>\n
charged u\/ss.148 and 302 IPC and rest of the accused appellants<\/p>\n
under ss.148 and 302 read with 149 IPC. The prosecution<\/p>\n
examined 17 witnesses. The statements of the accused were<\/p>\n
recorded    under   Section   313       CrPC.   They   produced   three<\/p>\n
witnesses in their defence. After hearing the arguments, the<\/p>\n
learned trial Judge convicted & sentenced the accused appellants<\/p>\n
as above.\n<\/p>\n<\/p>\n
3.   While assailing the judgment of the learned trial Judge, it<\/p>\n
has been contended by the learned counsel that out of 17<\/p>\n
witnesses examined by the prosecution, there were six eye<\/p>\n
witnesses of the case viz; Narayan (PW 1), Papudi (PW 2), Raju<\/p>\n
Singh (PW 3), Bhanwar Singh (PW 5), Shravni (PW 7) and<\/p>\n
Mugna Ram (PW 15). Out of these six eye witnesses, three<\/p>\n
witnesses viz; Papudi (PW 2), Raju Singh (PW 3) & Bhanwar<\/p>\n
Singh (PW 5) have turned hostile, who were named in the F.I.R.<\/p>\n
itself as eye witnesses, and Mugna Ram (PW 15), whose name
\n                                 4<\/span><\/p>\n
was not there in the FIR as eye witness, has been disbelieved by<\/p>\n
the learned trial Court. Thus according to him, there remains<\/p>\n
only two eye witnesses of the case viz; Narayan, PW 1 and<\/p>\n
Shravni, PW 7, whose evidence is also unreliable, as Narayan,<\/p>\n
PW 1 reached on the spot after the incident took place as per the<\/p>\n
FIR itself and Shravni, PW 7 was not present on the spot in view<\/p>\n
of the defence led by the accused appellants. He has further<\/p>\n
submitted that according to the doctor, the axe, by which<\/p>\n
accused Sukha Ram is alleged to have given blow on the<\/p>\n
deceased Chandra Ram, was not found blood stained and it was<\/p>\n
not sent for chemical examination. He has also drawn the<\/p>\n
attention of the Court towards the site plan Ex.P.2 and Ex.P.3 by<\/p>\n
asserting that the place where the incident took place, is the<\/p>\n
joint well of the complainant and the accused party and there<\/p>\n
was a previous murder case lodged against some of the<\/p>\n
prosecution witnesses of this case and on this account, the<\/p>\n
accused appellants have been falsely implicated on the trivial<\/p>\n
matter of taking water for agricultural purposes from the well.<\/p>\n
He has further submitted that in all, there are 12 injuries and not<\/p>\n
a single injury is incised wound, as all the injuries are lacerated<\/p>\n
wounds and abrasions. According to him, Dr.Laxmikant, PW 9,<\/p>\n
who conducted the post mortem report Ex.P.24, has also stated<\/p>\n
that no injury was caused by the sharp edged weapon and that if<\/p>\n
the deceased would have been given medical treatment, he
\n                                 5<\/span><\/p>\n
could have been saved. According to the doctor, except the<\/p>\n
lacerated wound on the right side of the scalp, death could not<\/p>\n
have been caused by rest of the injuries. He has further<\/p>\n
submitted that there is no question of formation of unlawful<\/p>\n
assembly, as the place where the incident took place, is the joint<\/p>\n
property of the complainant and the accused party.<\/p>\n
4.   Per contra, learned Public Prosecutor has supported the<\/p>\n
judgment of the learned trial Court.\n<\/p>\n<\/p>\n
5.   We have heard the arguments of both the parties at length<\/p>\n
and re-appraised the evidence brought on record. First of all, we<\/p>\n
will discuss the conviction of the accused appellants under<\/p>\n
Section 148 IPC, which provides punishment for rioting, armed<\/p>\n
with deadly weapons. For constituting the riot, there must be use<\/p>\n
of force or violence by the members of the unlawful assembly.<\/p>\n
Unlawful assembly has been defined under Sec.141 IPC, which<\/p>\n
defines an assembly of five or more persons having a common<\/p>\n
object composing the assembly to do any of the five criminal<\/p>\n
acts laid down in the Section. The Explanation of this Section<\/p>\n
also says that an assembly which was not unlawful when it<\/p>\n
assembled, may subsequently become an unlawful assembly.<\/p>\n
Therefore, in the light of the definition given in Section 141 IPC,<\/p>\n
an assembly of five or more persons also becomes an unlawful
\n                                 6<\/span><\/p>\n
assembly subsequently, if they are having a common object to<\/p>\n
do a criminal act.\n<\/p>\n<\/p>\n
6.    The common object has to be inferred from the facts and<\/p>\n
circumstances of each individual case like weapons used and the<\/p>\n
nature of injuries caused. In sudden attack pursuant to a<\/p>\n
quarrel, the Court cannot infer pre-planned attack and in such<\/p>\n
case, every individual offender is guilty for his separate act. In<\/p>\n
the above light, if the facts & circumstances of the present case<\/p>\n
are looked into, it is clear from the site plans Ex.P.2 and Ex.P.3<\/p>\n
that `Bera Gorva’ is on the joint land of the complainant and the<\/p>\n
accused party in which there are three wells. At point-1, there is<\/p>\n
water engine of deceased Chandra Ram, at point-2 there is<\/p>\n
water engine of accused Teja Ram and at point-3, there is water<\/p>\n
engine of accused Chautha Ram and his brothers. This shows<\/p>\n
that on the well, marked portion `X’, there are three water<\/p>\n
engines, one belonging to the complainant and rest two of the<\/p>\n
accused party. The presence of the accused party at their water<\/p>\n
engines is quite natural, as the well was in the joint possession.<\/p>\n
When the presence of the accused is natural, then the Court has<\/p>\n
to gather as to how unlawful assembly has been formed.<\/p>\n
According to the FIR and the statements of two eye witnesses<\/p>\n
who have been relied upon by the learned trial Judge viz;<\/p>\n
Narayan, PW 1 who is the author of the FIR and Shravni, PW 7,
\n                                 7<\/span><\/p>\n
the accused appellants were beating deceased Chandra Ram at<\/p>\n
the well. Both these witnesses have not said anything as to how<\/p>\n
these accused persons formed the unlawful assembly. The<\/p>\n
evidence of Narayan, PW 1 is that he was told by Raju that his<\/p>\n
brother has been beaten by the accused appellants. When he<\/p>\n
reached on the spot, accused Sukha Ram inflicted axe blow and<\/p>\n
rest of the accused gave lathi blows. Shravni, PW 7, said that her<\/p>\n
brother deceased Chandra Ram was operating engine on the<\/p>\n
well, where accused Nimba Ram started fighting and rest of the<\/p>\n
accused inflicted lathi blows alongwith accused Sukha, who was<\/p>\n
having axe in his hand. In the cross examination, she has stated<\/p>\n
that when her brother went on the well, accused Nimba Ram,<\/p>\n
who was already there, started verbal altercation with her<\/p>\n
brother and rest of the accused were sitting near the bushes. If<\/p>\n
the evidence of these eye witnesses is scrutinized in right<\/p>\n
perspective, the only inference which can be drawn is that the<\/p>\n
assembly of the accused persons was not unlawful but was the<\/p>\n
natural one. So far as the common object is concerned, it is true<\/p>\n
that a criminal case against some of the witnesses particularly<\/p>\n
Narayan,PW 1 is pending with regard to murder of father of<\/p>\n
accused appellant Teja Ram in which accused Chautha Ram,<\/p>\n
Sukha, Shrawan and Teja Ram are the witnesses. When such is<\/p>\n
the situation with regard to pending case against the witness<\/p>\n
Narayan, PW 1 in which four of the accused appellants are the
\n                                 8<\/span><\/p>\n
witnesses, it is quite possible that he might have exaggerated<\/p>\n
the story by implicating the accused for common object. Though<\/p>\n
enmity is a double edged weapon but when in a particular case,<\/p>\n
motive is lacking except that deceased Chandra Ram came on<\/p>\n
the well and fight started there, where accused appellants were<\/p>\n
already sitting on their wells, the only inference which can be<\/p>\n
drawn is that it was the individual act of the accused to resist<\/p>\n
him from taking water from the well. Such an act of the accused<\/p>\n
cannot be termed as a common object in forming an unlawful<\/p>\n
assembly. This can be further strengthened from the fact that<\/p>\n
one Chandra, who was named in the FIR as accused, has not<\/p>\n
been chargesheeted by the police and no weapon has been<\/p>\n
shown in the FIR Ex.P.1 with Chandra and Shrawan. In view of<\/p>\n
the above discussion, we are of the view that formation of<\/p>\n
unlawful assembly with common object as defined u\/s.141 IPC<\/p>\n
has not been proved and the learned trial Judge has not rightly<\/p>\n
appreciated the evidence in the above light.\n<\/p>\n<\/p>\n
7.   When the unlawful assembly and common object have not<\/p>\n
been proved, then it has to be seen as to what is the individual<\/p>\n
act of the accused. In this regard, out of the two witnesses relied<\/p>\n
upon by the learned trial Court, Narayan (PW 1) has stated that<\/p>\n
accused Sukha Ram inflicted axe blow on the head and rest of<\/p>\n
the accused gave blows on other parts of the body of deceased
\n                                 9<\/span><\/p>\n
with lathis. In the cross examination, he has stated that he and<\/p>\n
Bhanwar Singh reached on the spot together. Bhanwar Singh,<\/p>\n
PW 5, has turned hostile and according to Narayan, PW 1, when<\/p>\n
he   reached on the spot, thereafter the accused ran away,<\/p>\n
therefore, he did not try to intervene. In the later part of his<\/p>\n
cross examination, he has stated that he saw accused Sukha<\/p>\n
Ram inflicting axe blow on the head of the deceased and then<\/p>\n
the accused ran away, the relevant portion of his statement is<\/p>\n
extracted as under:\n<\/p>\n
      “…. \u092e\u0930 \u0926\u0916\u0924 \u0939 \u0938 \u0930 \u092a\u0930 \u091a \u091f \u0915\u0932\u0939 \u0921 \u0915 \u092e \u0930 \u0925 \u0914\u0930 \u092c \u0926
\n      \u092e \u0935\u0939      \u092d\u0917 \u0917\u092f\u0964”<\/p><\/blockquote>\n
     Shravni, PW 7 has stated that axe blow was given by<\/p>\n
accused Sukha and rest of the accused inflicted blows on ribs<\/p>\n
and rear side, upon which her brother fell down.<\/p>\n
     If the evidence of these two witnesses is looked into in the<\/p>\n
light of the medical evidence of the Dr.Laxmikant, PW 9, who<\/p>\n
conducted the post mortem vide Ex.P.24, it is clear that there<\/p>\n
were in all 12 injuries. Injury No.1 is lacerated wound on right<\/p>\n
parietal region of scalp, injuries No.2 and 3 are lacerated<\/p>\n
wounds, injury No.4 is on the right knee joint, which is abrasion<\/p>\n
and rest of the eight injuries are bruises on the right & back side<\/p>\n
of chest of deceased. The doctor has also stated in his cross
\n                                10<\/span><\/p>\n
examination that none of the injuries could have been caused by<\/p>\n
sharp edged weapon. He has further stated that except injury<\/p>\n
No.1, which is the lacerated wound on the right scalp, it was not<\/p>\n
possible to have caused death by rest of the injuries. He has<\/p>\n
further stated had there been medical treatment in time, the<\/p>\n
deceased could have been saved. Thus, taking into account the<\/p>\n
evidence of the eye witnesses coupled with the testimony of the<\/p>\n
doctor, the only conclusion which can be arrived-at is that the<\/p>\n
accused were having no intention to kill the deceased and it was<\/p>\n
accused appellant Sukha Ram, who inflicted one axe blow on the<\/p>\n
head resulting in death of deceased Chandra Ram but he could<\/p>\n
have been saved, had there been any proper medical treatment<\/p>\n
in time. This act of accused Sukha Ram cannot be described as<\/p>\n
an intentional act of causing death or intentionally causing an<\/p>\n
injury, which is sufficient in the ordinary course of nature to<\/p>\n
cause death. His act can be attributed only to the extent that he<\/p>\n
was having knowledge that by inflicting axe blow from its rear<\/p>\n
side, which is not sharp, death might have been caused.<\/p>\n
Therefore, the act of accused Sukha Ram can be punishable<\/p>\n
under Section 304 part II IPC, which is culpable homicide not<\/p>\n
amounting to murder. So far as the rest of the accused<\/p>\n
appellants are concerned, they have simply inflicted injuries in<\/p>\n
the nature of abrasions and bruises, which are simple in nature,<\/p>\n
caused by blunt weapons. Therefore, the individual act of rest of
\n                                  11<\/span><\/p>\n
the accused can be made punishable only under Section 323 IPC.<\/p>\n
8.    Consequently, we allow this appeal in part & while setting<\/p>\n
aside the judgment dt.18.6.02 passed by learned Addl.Sessions<\/p>\n
Judge, Sojat Camp Jaitaran (Pali), convicting accused appellant<\/p>\n
Sukha Ram of the offences u\/ss.148 & 302 IPC and rest of the<\/p>\n
accused appellants Nimba Ram, Chautha Ram, Teja Ram, Dayal,<\/p>\n
Mana Ram and Shrawan of the offences u\/ss.148 and 302 read<\/p>\n
with 149 IPC, accused appellant Sukha Ram is convicted of the<\/p>\n
offence u\/s.304 part II IPC & sentenced to the period already<\/p>\n
undergone, which is more than seven years, together with a fine<\/p>\n
of Rs.5000\/- and rest of the accused appellants Nimba Ram,<\/p>\n
Chautha Ram, Teja Ram, Dayal, Mana Ram and Shrawan are<\/p>\n
convicted of the offence u\/s.323 IPC and sentenced to the period<\/p>\n
already undergone, which is about three months, together with a<\/p>\n
fine of Rs.5000\/- each. The order of the learned trial Judge in<\/p>\n
awarding the amount of Rs.25,000\/- to the wife of deceased<\/p>\n
Chandra Ram, out of the amount of fine recovered from all the<\/p>\n
accused appellants, is maintained. Accused Sukha Ram is in<\/p>\n
custody, he shall be set at liberty forthwith, if not required in any<\/p>\n
other case, on depositing the amount of fine, awarded. Rest of<\/p>\n
the accused appellants shall deposit the amount of fine of<\/p>\n
Rs.5000\/- each within a period of fifteen days from today, if they<\/p>\n
have not already deposited the same so far, failing which each of
\n                              12<\/span><\/p>\n
them would undergo six months’ R.I. in default of payment of<\/p>\n
fine, imposed as above.\n<\/p>\n<\/p>\n
(DEO NARAYAN THANVI), J.                 (A.M.KAPADIA), J.\n\n\n\n\nRANKAWAT JK, PS\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court – Jodhpur Nimba Ram & Ors vs State on 22 April, 2009 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Nimba Ram & ors. Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.468\/2002 against the judgment dt.18.6.02 Passed by the learned Addl.Sessions Judge, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,19],"tags":[],"class_list":["post-31505","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"\nNimba Ram & Ors vs State on 22 April, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nimba-ram-ors-vs-state-on-22-april-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nimba Ram & Ors vs State on 22 April, 2009 - 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