Bhagwan Sahay And Ors vs State Of Rajasthan

Appellants have filed this appeal challenging their conviction and sentence as ordered by the Trial Court vide judgment/order dated 31.01.2014.

Appellants were convicted and sentenced as under:- Appellants- Bhagwan Sahay, Rakesh and Sita Devi U/s. 302 Indian Penal Code, 1860

(hereinafter referred to as 'IPC'): Life imprisonment, to pay a fine of Rs.10,000/- and in default thereof to undergo three months rigorous

imprisonment.

U/s. 323 IPC: Three months rigorous imprisonment, to pay a fine of Rs.500/- and in default thereof to undergo fifteen days rigorous imprisonment.

U/s. 341 IPC: One month simple imprisonment, to pay a fine of Rs.200/- and in default thereof to undergo ten days simple imprisonment.

Prosecution story, in brief, is that on 20.10.2012 at about 8.15 p.m., complainant Devlal received a phone-call from his son- in-law Sitaram that his

neighbour Shiv Prakash and his family members were quarreling with him. Complainant along with his wife Santra went to the house of his son-in-

law. When they reached the house of their son-in-law, they saw that Bhagwan Sahay and his wife Sita Devi and their son Shiv Prakash and Rakesh

were armed with sticks and iron rods. Complainant tried to pacify Bhagwan Sahay but Bhagwan Sahay, his wife and their sons Shiv Prakash and

Rakesh along with two/three other persons attacked Sitaram with an intention to kill him. They inflicted injury on the head of Sitaram. As a result,

Sitaram fell down. Complainant and his wife intervened to rescue Sitaram. As a result, complainant and his wife also suffered injuries. Somebody

called the ambulance to the spot and injured were removed to the hospital for treatment. However, doctors declared Sitaram as dead.

On the basis of the statement of the complainant, formal FIR No.765 was registered on 21.10.2012 under Sections 147, 148, 149, 302 IPC at Police

Station Jawahar Circle, District Jaipur (East).

After completion of investigation and necessary formalities, challan was presented against the appellants. So far as the accused Shiv Prakash is

concerned, challan was presented against him before the Juvenile Justice Board as he was a juvenile at the time of the incident. It has been stated

during the course of arguments that the trial against Shiv Prakash is still pending.

Charges were framed against the appellants under Sections 341, 302, 323/34 IPC.

Appellants did not plead guilty to the charges framed against them and claimed trial.

In order to prove its case, during trial, prosecution examined sixteen witnesses. Appellants when examined under Section 313 Code of Criminal

Procedure, 1973 after the close of prosecution evidence, prayed that they had been falsely involved in the case.

Appellants did not examine any witness in their defence. Learned counsel for the appellants has submitted that so far as the appellants Bhagwan

Sahay and Sita Devi are concerned, they have been falsely involved in this case. As per the prosecution story, injury on the head of the deceased was

inflicted by appellant-Rakesh. So far as appellants Bhagwan Sahay and Sita Devi are concerned, they are attributed injuries to the injured Devlal and

Santra. The said injured were medically examined on 23.10.2012. As per their medico legal examination reports Exhibit- P.18 and Exhibit-P.19 they

had suffered injuries within five days. Thus, the ocular version with regard to the injuries inflicted by Bhagwan Sahay and Sita Devi was not

corroborated by medical evidence. So far as appellant-Rakesh is concerned, he is attributed injury on the head of the deceased with a stick.

Occurrence in the present case had taken place all of a sudden. Hence, at the most, it could be said to be a case falling under Section 304 Part I IPC

in view of Exception 4 to Section 300 IPC.

Learned state counsel has opposed the appeal and has submitted that the present case rests on eye-witness account and eye-witnesses examined

during trial have duly supported the prosecution case.

Present case relates to murder of Sitaram and injuries suffered by injured Devlal PW-12 and Santra PW-13. Thus, prosecution case rests on eye-

witness account.

First of all, let us examine the prosecution case vis-Ã -vis appellant-Rakesh.

PW-7 Ramjilal deposed that occurrence had taken place on 20.10.2012 at about 7.00 p.m. As per this witness wife of Bhagwan Sahay had thrown

garbage and had abused Seema wife of Sitaram. Sitaram and his wife came out of the gate of their house. Shiv Prakash called his son Rakesh on

phone and Rakesh came to the spot armed with a thick stick and inflicted a blow with it on the head of Sitaram. Bhagwan Sahay and his wife inflicted

injuries to Seema and Santra with iron rods. Devlal was inflicted injuries by Shiv Prakash. Statement of eye-witness PW-7 Ramjilal is corroborated by

PW-12 Devlal, PW-13 Santra and PW-14 Seema.

So far as PW-7 Ramjilal and PW-14 Seema are concerned, their statements with regard to their presence at the spot inspires confidence. Presence of

PW-14 Seema is natural at the spot as the occurrence had occurred in front of the gate of her house and the occurrence had occurred as Sita Devi

had thrown garbage in the house of Sitaram. So far as PW-12 Devlal and PW-13 Santra are concerned, their presence at the time of incident is

doubtful. PW- 13 Santra deposed in her cross-examination that when they had reached the spot, injuries had already been inflicted. Moreover, it

appears to be unnatural that Sitaram would have got the chance to call his father-in-law and mother-in-law to the spot when he was being inflicted

injuries and his father-in-law and mother-in- law had reached the spot and had seen the incident. Another fact which makes the presence of the PW-

12 and PW-13 doubtful is their medical examination reports. Exhibit-P.18 is the medico legal examination report of PW-12 Devlal, whereas, Exhibit-

P.19 is the medico legal examination report of PW-13 Santra. The said reports have been proved on record by PW-11 Dr. Sudhir Sharma. As per the

medico legal examination report Exhibit-P.18 and Exhibit P-19 injuries had been suffered by the injured within five days. Devlal and Santra were

medically examined on 23.10.2012 as is evident from the testimony of PW-11 and Exhibit-P.18 and Exhibit-P.19. The said injured had suffered simple

injuries with blunt weapons. Incident in the present case had occurred on 20.10.2012, whereas, injured Devlal and Santra were got medically

examined on 23.10.2012. Since, the injuries suffered by the said injured were within five days, the medical evidence does not corroborate the fact that

the Devlal and Santra had suffered injuries in the incident which had occurred on 20.10.2012. In case they had suffered injuries in the incident dated

20.10.2012 they could have got themselves medically examined on 20.10.2012 itself. FIR was lodged on 21.10.2012. Thus, it appears that so far as

PW-12 and PW-13 are concerned, they had reached the spot after the incident had occurred.

So far as Rakesh is concerned, it is evident that he had inflicted injury with a stick on the head of the deceased Sitaram. In this regard, statements of

PW-7 Ramjilal and PW-14 Seema are relevant. Both the said witnesses had deposed that Rakesh had inflicted stick blow on the head of deceased.

PW-15 Dr. Anil Solanki deposed that he had conducted post mortem examination on the dead body of the deceased Sitaram on 21.10.2012 and had

found two injuries on his person. He proved the post mortem report Exhibit-P.22.

As per the post mortem report Exhibit-P.22 deceased had suffered following injuries:-

Bruise of size 5cm x 1.5 cm with gap of 0.5 cm present over right mid axillary line obliquely placed reddish colour(caused by blunt object) 29 cm

from top of shoulder and 23 cm from anterior superior clear spine.

Stitched wound 7 cm present over right parieto occipital reason vertically placed dry red clotted blood with surrounding swelling present near mid

line on F/ examination there is reddish sub scalp hematoma present over right parieto occipital region on further examination skull bone found fracture

at occipital bone extending upto bone of a skull and further examination membrane found tense and reddish sub dural hematoma present. Left

cerebellum region and sub arachnoid hemorrhage present B/L partial lobes, multiple small contusion of size 0.5 x 0.5 cm to 0.5 cm to 0.8 cm reddish

colour and inter hemispheric hematoma and small territorial ante mortem hematoma reddish in colour.

Cause of the death of the deceased was coma brought about as a result of ante mortem head injury No.3 which was sufficient to cause death in the

ordinary course of nature. In the post mortem report, there is no injury no.1, rather at serial no.1, it has been mentioned as ""sealed glass bottle

containing blood soaked dry gauze pieces"". Both the eye-witnesses have attributed one injury on the head of the deceased to appellant-Rakesh. So far

as other accused are concerned, they were not attributed any specific injury to the deceased. Since, as per the eye-witnesses, Sitaram had fallen on

the ground after he was inflicted injury by appellant- Rakesh, it is probable that injury mentioned at serial no.2 in the post mortem report could be a

result of fall on the ground. Occurrence in the present case had taken place on the issue of garbage thrown by Sita Devi. Occurrence had taken place

outside the gate of the house of Sitaram. PW-7 had tried to pacify both the parties. Hence, it appears that the appellant-Rakesh gave a stick blow on

the head of the deceased in the occurrence which had taken place all of a sudden and in the heat of passion. Appellant-Rakesh did not repeat the

blow on the person of Sitaram. Thus, appellant-Rakesh had no intention to commit the murder of Rakesh but had an intention of causing such bodily

injury which was likely to cause death.

Hence, we are of the considered opinion that the conviction and sentence of the appellant-Rakesh under Section 302 IPC is liable to be set aside and

he is liable to be convicted and sentenced qua offence punishable under Section 304 Part I IPC.

So far as appellant Bhagwan Sahay and Sita Devi are concerned, they are liable to be acquitted of the charges framed against them because they are

attributed injuries to injured Devlal and Santra. However, the prosecution case that Devlal and Santra had also suffered injuries in the incident which

had occurred on 20.10.2012 is not corroborated by medical evidence as discussed above. Moreover, as discussed above, Devlal and Santra had

reached the spot after the incident and the injuries which might have been suffered by them two days prior to the incident (as can be concluded from

their medical evidence on record) were used to show them as witnesses to the incident in the present case.

Since, in the present case, the occurrence had occurred in the passage, so appellants are liable to be acquitted with regard to the charge framed

against them under Section 341 IPC.

Accordingly, appeal is partly allowed. Appellants Bhagwan Sahay and Sita Devi are acquitted of the charges framed against them and the impugned

judgment/order dated 31.01.2014 is set aside qua them.

So far as appellant Rakesh is concerned, his conviction and sentence as ordered by the trial court under Section 302, 323, 341/34 IPC is set aside.

Appellant Rakesh is held guilty of commission of offence under Section 304 Part I IPC and is convicted thereunder. Appellant-Rakesh is sentenced to

undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/-. In default of payment of fine, appellant-Rakesh shall further undergo

rigorous imprisonment for three months.

In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellants Bhagwan Sahay S/o Shri Panna Lal and Sita Devi W/o Shri

Bhagwan Sahay are directed to furnish a personal bond in the sum of Rs.25,000/-, and a surety in the like amount, before the Registrar(Judicial) of this

Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment

or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.