Babu Lal vs State of Rajasthan

In this criminal appeal filed by accused appellants, Babulal

and Jeeva Ram, under Section 374 (2) Cr.P.C . the judgment dated

03rd of July, 2015 passed by Additional Sessions Judge, Bali,

District-Pali in Session Case No.35/2011 arisen out of F.I.R.

No.49/2011 of Police Station- Khinwara District Pali, is under

challenge whereby the accused appellants were convicted for offence under Sections 302 / 34 & 323 read with Section 34 of IPC

and following sentence was passed against the appellants: -

Both appellants:

302/34 of IPC : Imprisonment for life along with fine of Rs.3000/-. In default of payment of fine to further undergo simple imprisonment for six months. Appellant- Jeeva Ram

323 r/w 34 of IPC : Simple imprisonment for one month

Succinctly stated, the facts of the case are that the

appellants along with two other co-accused persons, namely, Smt.

Gerki Devi and Smt. Kanchan Devi, came to be charge sheeted for

the offences under Sections 341, 323, 302 / 34 IPC by the S.H.O.,

Police Station Khinwara, in connection with F.I.R. No.49/2011

(Ex.P/22) registered on 24.06.2011.

The aforesaid F.I.R. was registered on the basis of written

report (Ex.P/7) submitted by the complainant, Sonaram (PW.4) in

which following allegations were levelled against the appellants by

him: -

"VERNACULAR MATTER OMITTED"

The investigation of the FIR culminated into the submission

of a charge sheet against the accused appellants in the court of

Judicial Magistrate, Desuri from where the case was committed to

the court of Addl. Sessions Judge, Bali, District Pali, where trial

took place.

The learned trial court after providing opportunity of hearing

to the appellants framed charge against the accused appellants

under Sections 341 / 34, 302 / 34 & 323 / 34 IPC and commenced the

trial.

In the trial, statements of 27 prosecution witnesses were

recorded and 43 documents were exhibited from prosecution side.

Thereafter statements of accused appellants were recorded under

Section 313 Cr.P.C. in which they said that it is a case of false

implication and they are innocent. In defence, 3 witnesses were

examined by the appellants viz. DW.1- Sawtaram, DW.2-

Madhudas, and DW.3- Vajaram and 9 documents were exhibited

in defence. Thereafter, final arguments were heard and the

learned trial court convicted and sentenced the appellants for

offence under Section 302 / 34 and 323 / 34 of IPC vide judgment

dated 03.07.2015, which is under challenge in this appeal.

At the threshold learned counsel for the appellants submit

that appellants are not challenging the occurrence and injury

caused to the deceased and other injured witnesses but submit

that all the injuries found upon the body of the injured

eyewitnesses were simply in nature and only two injuries were

found upon the body of the deceased, that too, were in the nature

of bruises and there is no allegation for repeated blow by the

appellants, therefore, the ingredients of offence under Section

302 / 34 IPC are missing. Admittedly the occurrence took place due

to some dispute in some old marriage, therefore, it is obvious that

there was no motive of the accused appellants to cause death of

the deceased. The FIR (Ex.P/22) was registered against four

persons and after investigation charge sheet was filed against

four, and out of four accused persons, two accused, namely, Smt.

Gerki Devi and Smt. Kanchan Devi, were acquitted by the trial

court, whereas both the accused appellants were convicted for

offence u/s 302/34 and 323/34 of IPC .

Learned counsel for the accused appellants submits that the

trial court has disbelieved the prosecution case for involvement of

two accused, namely, Smt. Gerki Devi and Smt. Kanchan Devi,

and acquitted them, but committed a grave error to convict the

accused appellants guilty for offence u/s 302/34 of IPC because as

per injury report of Sonaram (Ex.P/8), only one contusion was

found upon his body and complaint of pain was observed in the

injury report of injured eyewitness Smt. Manju and three

contusions were found upon the body of injured eyewitness,

Kanya vide injury report (Ex.P/20). Likewise, only two abrasions

were found upon the body of deceased, which were mentioned in

the postmortem report (Ex.P/21).

Learned counsel for the appellants submits that as per

nature of injuries, it can be presumed that there was no intention

of the accused appellants to cause death of the deceased. The

injured eyewitness improved their statements but even if their

allegations are accepted, then obviously number of injuries were

to be found upon the body of the deceased, as well as other

injured witnesses, but there is no corroboration by medical

evidence for the allegations levelled by injured eyewitness PW.4-

Sonaram, PW.6 Kanya Bai and PW.17- Manju. Further, in the

postmortem report only two injuries were found upon the body of

the deceased, therefore, the allegations of repeated blow and

number of injuries by other witnesses, is totally false.

Learned counsel for the appellants further argued that

allegations of the eyewitnesses are not corroborated by the

medical evidence. As per statements of doctor, some injuries were

caused to eyewitnesses and two injuries were caused to the

person of deceased, which is evident from postmortem report. If

the accused appellants were having "Lathi" and iron rod in their

hands, then obviously if there was intention, they should have

caused number of injuries upon the vital part of the body of the

deceased, therefore, without insisting upon the fact of incident, it

is submitted that finding of learned trial court convicting the

accused appellants for offence under Section 302 / 34 IPC is not

sustainable in law.

With regard to accused appellant, Jeeva Ram it is submitted

that in the statements of eyewitnesses the allegation against

Jeeva Ram is for causing one injury upon the leg of the deceased,

and allegation of causing injury upon the head is attributed to

accused-Babulal that too in a quarrel, which is said to be occurred

on 24.06.2011 and no blood was found upon the "Lathi" recovered

from the accused appellant, Jeeva Ram. Therefore, learned

counsel for the appellants submitted that finding of guilt recorded

against appellant- Jeeva Ram, for offence under Section 302 / 34

IPC may be altered to offence under Section 325 of IPC and the

finding recorded against accused appellant Babulal may be altered

from offence u/s 302/34 to offence u/s 304 Part-II of IPC .

In support of his arguments, learned counsel for the

appellants invited our attention towards judgment of this Court in

the case of Kapoora Vs. State of Rajasthan reported in 2016

(3) CJ (Criminal) (Rajasthan) 1121 and Shahajan Ali & Ors

Vs. State of Maharashtra & Ors. reported in 2017 (6) SCALE

566.

Per contra, learned Public Prosecutor vehemently submitted

that it is a case in which any interference is warranted because

injuries were inflicted by the accused appellants with intention to

kill deceased, Moola Ram, which is evident from the fact that out

of two injuries, one injury was found upon the head of the

deceased. The learned trial court while relying upon the testimony

of eyewitnesses held that the accused appellants are guilty for

offence under Section 302 / 34 of IPC, therefore, no interference is

called for in this appeal.

After hearing the learned counsel for the parties, first of all

we have perused the entire evidence and considered the fact that

the motive for incident was old dispute arose in a marriage, which

is evident from the written complaint submitted by the

complainant, Sonaram (PW.4). In the complaint (Ex.P/7), it is

specifically said by the complainant that "...iqjkuh "kknh dh ckr dks yd s j

gekjs ukjkt FkAs ". Meaning thereby, there was no other reason for

quarrel. Furthermore, learned counsel for the appellants is not

disputed the incident and evidence of prosecution.

We have perused the injury reports of injured eyewitness. In

the injury report (Ex.P/8) of Sonaram (complainant), only one

contusion was found upon his body. Similarly in the injury report

(Ex.P/9) of Manju (eyewitness), there was complaint of chest pain.

In the injury report (Ex.P/20) of Kanya Bai W/o Sonaram, three

contusion were recorded by the medical jurist. In the postmortem

report (Ex.P/22), two injuries were found upon the body of the

deceased and the cause of death was head injury, which reads

thus:

"1. Abraded bruise 6.0 cm x 1.0 cm one the Rt. Parietal region, obliquely with swelling.

Abrasion 5.0 cm x 1.2 cm on left knee joint lower part and leg ... obliquely. "

However, the fact remains that there was no reason, motive

or any incident of quarrel was reported prior to this incident. Upon

assessment of the statements of injured eyewitnesses, it is

obvious that allegation against the accused appellant, Jeeva Ram

is for causing one injury upon the leg of the deceased in the

quarrel took place on 24.06.2011 and that injury was not the

cause of death, and the cause of death was heady injury.

In our opinion, in the quarrel took place on 24.06.2011 in

between complainant party and accused party, two injuries were

found upon the body of the deceased, out of which, injury found

upon the leg of the deceased, was alleged to be caused by

accused appellant, Jeeva Ram, whereas injury found upon the

head was alleged to be caused by Babulal (appellant) and no other

injury was found upon the body of the deceased.

We have perused the statements of Dr. M.P. Joshi (PW.23),

medical jurist of M.G. Hospital, Jodhpur, who performed the

postmortem of the deceased on 28.06.2011. Admittedly, the

incident took place on 24.06.2011, but deceased died on

27.06.2011 in the night at 10''O clock, i.e. after three days of the

incident. We have perused the FSL report (Ex.P/14), in which it is

reported that no blood was found upon the "Lathi" which is said to

be recovered at the instance of accused appellant, Jeeva Ram.

However, blood was found upon the iron rod recovered from the

accused appellant Babulal. In our opinion, the finding of guilt

recorded by the trial court for offence under Section 323 / 34 IPC

does not require any interference, but with regard to finding

recorded under Section 302 / 34 IPC against accused appellant,

Jeeva Ram, we are of the opinion that in absence of any evidence

of motive, or serious reason for intention and considering the fact

that no blood was found upon the "Lathi" recovered from Jeeva

Ram, against whom the allegation to cause one injury upon the

leg is levelled, the finding of conviction u/s 302/34 IPC is not

sustainable in law, because it has not been proved on the basis of

reliable evidence. But, at the same time, we cannot be loose sight

of the fact there is allegation of inflicting injury upon the deg of

the deceased by the accused appellant, Jeeva Ram, and as per

opinion of the doctor, injury No.1 caused upon the head of the

deceased, was the cause of death and there is no evidence as to

whether injury No.2 found upon the leg was grievous in nature.

We are thus of the opinion that the finding of guilt recorded

against accused appellant Jeeva Ram for offence u/s 302/34 IPC is

not sustainable and deserves to be quashed, however, he is liable

to be held guilty for committing offence under Section 323 / 34 of

IPC.

With regard to allegation against accused appellant, Babulal

for causing injury upon the head of the deceased, Moola Ram, we

have examined the statements of injured eyewitnesses, namely,

PW.4- Sonaram, PW.6 Kanya Bai and PW.17- Manju. All these

witnesses though said that number injuries were caused by him

but in the postmortem report and as per statements of the doctor,

only one injury was found upon the head of the deceased and,

therefore, it is obvious that it is a case in which the prosecution

has proved that only one injury was found upon the head of the

deceased, therefore, the testimony of injured eyewitnesses for

inflicting number of injuries cannot be accepted. As per

prosecution evidence, it is obvious that prosecution has proved its

case beyond reasonable doubt that accused appellant, Babulal

inflicted one injury upon the head of the deceased, which resulted

into death.

In our opinion, the finding of guilt recorded against accused

appellant- Babulal for offence under Section 302 / 34 IPC is not

sustainable in law because offence cannot travel beyond offence

under Section 304 Part-II of IPC.

In the case of Kapoora Vs. State of Rajasthan (supra),

almost in identical set of evidence, this Court held has under:

"15. After hearing learned counsel for the parties, it is necessary to observe that counsel for the accused appellant is not disputing the incident but argued that incident took place in spur of moment in which both the parties were armed with blunt and sharp edged weapons and the occurrence took place for the reason that a theft was committed by the accused appellant along with other co accused in the agricultural field of Ladu Singh and for that incident Ladu Singh asked the deceased Bhura and his family members to give instructions the accused party not to commit such type of offence of theft. The witness PW-4 Ladu Singh gave statement in the Court that although theft of crop of ?Rayada? was committed in his agricultural field but I do not know who has committed the offence and how much quantity of ?Rayada? was stolen by the thieves. The said witness turned hostile in the trial and did not support the prosecution case. In our opinion, if specific allegation is leveled in the FIR to establish motive and that incident is not supported by any other independent witness or witness turned hostile and did not prove the allegation of motive then, it can be said that the story of prosecution is based upon concocted story for motive."

Upon consideration of entire evidence in the light of aforesaid adjudication, we are of the opinion that it is a fit case in which conviction of accused appellant Kapoora can be altered from offence under Section 302 IPC to offence under Section 304 Part-II IPC. Accused appellant Kapoora remained in custody from 07.03.1986 to 22.3.1988 during trial, thereafter, his sentence was suspended by this Court vide order dated 27.08.1990, thus, he has remained in custody for a period of more than four years. Therefore, we deem it proper to reduce the sentence of accused appellant Kapoora to already undergone."

In case of Shahajan Ali (supra), the Hon''ble Supreme

Court gave following verdict in para no.7 which reads as under:-

"7. We have no doubt about the complicity of all the Accused in the homicide of Sarfraj. A-1 attacked the deceased with the knife and caused injury on his neck which resulted in his death. The other Accused assisted him in committing the crime by holding the hands of the deceased. However, the only question that falls for our consideration is whether the Accused are liable to be punished for an offence Under Section 302 Indian Penal Code. After considering the submissions made by the counsel for the Appellants and scrutinising the material on record, we are of the opinion that the Accused are not liable to be convicted Under Section 302 Indian Penal Code. We are convinced that there was neither prior concert nor common intention to commit a murder. During the course of their business activity the Accused reached the dhaba where the deceased was present. An altercation took place during the discussion they were having behind the dhaba. That led to a sudden fight during which A-1 attacked the deceased with a knife. Exception 4 to Section 300 is applicable to the facts of this case. As we are convinced that the Accused are responsible for the death of Sarfraj, we are of the opinion that they are liable for conviction Under Section 304 part II of the Indian Penal Code . We are informed that A-1 has undergone a sentence of seven years and that A-2 to A-4 have undergone four years of imprisonment. We modify the judgment of the High Court converting the conviction of the Accused from Section 302 to Section 304 part II of the Indian Penal Code sentencing them to the period already undergone. They shall be released forthwith."

In view of above discussion while relying upon the aforesaid

judgments, the instant criminal appeal is hereby partly allowed. The conviction of the accused appellant- Jeeva Ram for offence

under Section 302 / 34 IPC is hereby quashed and set aside, but

the other finding of conviction for offence under Section 323 / 34

IPC is hereby maintained. The sentenced awarded to accused

appellant- Jeeva Ram is reduced to the period already undergone

by him. The accused appellant- Jeeva Ram is on bail, his bails

bonds are hereby discharged.

Similarly, the finding of guilt recorded against accused

appellant, Babulal for offence under Section 302 / 34 IPC is hereby

altered to offence under Section 304 Part-II of IPC and the

sentence of life imprisonment imposed against accused appellant-

Babulal is hereby reduced to seven years'' RI, however, conviction

of accused appellant u/s 323/34 IPC, is hereby maintained.

We have also considered the question of compensation to be

granted to the legal heirs of deceased in the light of Section 357-A

of Cr.P.C. In our opinion it is a fit case of granting compensation

to legal heirs of deceased, therefore, the appellants are hereby

directed to pay compensation of Rs.75,000/- to the legal heirs of

deceased- Moola Ram. The said amount may be deposited within a

period of two months from the date of receipt of certified copy of

this judgment. In default of payment of aforesaid compensation,

the accused appellants shall further undergo one year''s additional

rigorous imprisonment. In the event of depositing aforesaid

amount, the learned trial court shall disburse the amount of

compensation to the legal heirs of the deceased Moola Ram.