Dana Ram and Others vs State of Rajasthan

Shyam Sunder Byas, J.—The appeal is directed against the judgment of the learned Sessions Judge, Merta dated March 14,1975 convicting and sentencing the appellants as under:

-------------------------------------------------------------------------------- S.No. Name of accused Offence Sentence awarded Under Section

-------------------------------------------------------------------------------- (1) Dana Ram 302, IPC Imprisonment for, life and a fine of Rs. 50/- 447, IPC Simple Imprisonment for six months;

(2) Deva Ram 302/34, IPC Imprisonment for life and a fine of Rs. 50/-; 323, IPC Three months simple impri- sonment;

447, IPC Six months simple imprisonment; (3) Rewat Ram 302/34, IPC Imprisonment for life and a fine of Rs. 50/-; 323, IPC Three months simple imprisonment; 447, IPC Six months simple imprisonment. --------------------------------------------------------------------------------

Substantive sentences were directed to run concurrently.

The prosecution case is short and simple. On July 20, 1974 PW 1 Bhoma Ram and his father Baluram went to sow Moth crop in their field situate in Sarhad Panchoori, district Nagaur. This field was a part of a big field bearing Khasra No. 305. In the Old Settlement, the field had come in the possession of Baluram through a registered sale deed and an award made in an Arbitration proceeding. The field originally belonged to accused Danaram. He was not happy with the Award of the Arbitration and wanted to recover back the possession over the field. While Bhomaram and his father Baluram were sowing the seeds in the aforesaid field on July 20, 1974, the accused Danaram, Dewaram and Rewatram went there in the noon. Accused Danaram had a Jharbar while the remaining two had two-pronged Jeyees. Accused Danaram shouted:

?k.kk fnu gks x;k ckcyk A

At this, accused Dewaram and Rewat Ram started beating Baluram with their Jeyees. Baluram fell down. Accused Danaram struck blows on his head with the blunt-side of his Jharbar. Seeing his father assaulted and belabourned, Bhomaram came to his rescue, but he too was not spared and he was landed two blows by accused Rawat Ram and Dewaram. Bhomaram (PW 1) rushed to his Dhani and informed his mother of the incident. They both came there and found Baluram lying in the field with multiple wounds. It is alleged that PW 2 Girdhari, who was working in his field situate nearby, had seen the incident. He also rushed to the spot. The accused then went away taking their weapons with them. Bhomaram went to PW 3 Raghunath and apprised him of the incident. He also came to the Dhani of Bhoma where Baluram was taken and was lying unconscious. Raghunath stopped there for some time. Baluram did not survive and passed away. Raghunath went to the Police Station, Panchori and verbally lodged report Ex. P 2 of the occurrence at about 3.30 p.m. on the same day. The station House Officer Chhatar Singh (PW P 3) arrived at the Dhani of Baluram where his dead body was lying. He prepared the inquest report of his deadbody. He also inspected the site. The autopsy of the victim''s dead body was conducted at about 11.00 a.m. on July 21,1974 by Dr. Mohammed Ibrahim. He noticed the following injuries on the dead body of the victim:

External:

(1) Lacerated wound 3" x 1/2" skin deep on the occipital region 4" above the hair line and 7" from the right ear;

(2) Lacerated wound 1" x 1/2" x 1/2" on the right half of the occipital 3" above the hair line, and 3" from the right mastoid process;

(3) Lacerated wound 1" x 1/4" x 1/4" on the left thign anteriorly placed 4" above the pattelar prominance;

(4) Lacerated wound 1" x 1/2" x 1/2" on the left leg on the anterior part 6" below the pattelar prominance and 8" above the medial mallualous;

(5) Abrasion 2-1/2" x 2" in size on the ulnar side of the left fore-arm 4" below the elbow prominance and 7" above the wrist joint;

(6) Bruise multiple bruises lying across the spine in 5-1/2" x 4" area (more than four in number) extending down from the level of 7th thorasic spine and 8" above iliac crest;

(7) Bruises transversely placed three in number in 1/2" x 3-1/2" area upper one 7" below the anterior iliac spine and 4" above the knee joint;

(8) Bruises transversely placed, two in number, in 5" x 2" area upper one 5" below the greater tronchoter and lower one 6" above the knee pit. These injuries were on the back of the thigh.

Internal:

(1) There was a collection of clotted blood on the right occipital region. I removed the clotted blood and detected a liner fracture of the skull vault on the occipital region. 2-1/2" in size obliquely placed, 2" above the right mastoid process extending upto at a distance of 7" above right orbittal upper margin;

(2) Meninges were congested and blood clot was present between membrance and skull. The blood clot was pressing the brain matter on its right side;

(3) There was huge collection of clotted blood beneath the skin and muscle fibres of the back around the virebtral column extending down upto the sacral region. This collection of blood extended on both sides of spines in area of 4 to 5 inches,

The injuries were ante-mortem caused by some blunt object. The doctor was of the opinion that the death was a result of coma due to head injuries. The head injuries were stated to be individually sufficient in the ordinary course of nature to cause death. The postmortem report prepared by the doctor is Ex. P 4. The injuries of Bhoma were also examined. One abrasion was found below left elbow prominance and one bruise was found below the shoulder prominance. Both the injuries were simple caused by some blunt object. The blood-stained clothes of the deceased were seized and sealed. The accused were rounded up and in consquence of the informations furnished by them, lathies and Jharbar were recovered. Human blood was detected on the Jharbar. On the completion of investigation, the police submitted a challan . against the three accused persons in the Court of Munsif & Judicial Magistrate, Nagaur who, in his turn, committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under Sections 302 and 447, IPC against accused Danaram and under Sections 302/34, 323 and 447, IPC against accused Dewaram and Rawat Ram. The accused pleaded not guilty and faced the trial. In support of its case, the prosecution examined 18 witnesses and some documents. In defence, some documents were filed but no witness was examined. Out of 18 prosecution witnesses, two, viz. PW 1 Bhoma Ram and PW 2 Girdhari were alleged to have seen the occurrence. PW 1 Bhoma Ram is the son of the deceased victim Baluram and was sowing the crop with him. Bhoma Ram (PW 1) sustained two simple injuries in the incident. On the conclusion of trial, the learned Sessions Judge concluded that PW 2 Girdhari had not seen the incident and he was falsely introduced as ocular witness. He, however, found the testimony of PW 1 Bhoma Ram as dependable, reliable and trustworthy. On the strength of what he deposed, the learned Sessions Judge held that accused Danaram had struck two blows on the head of deceased Baluram with the blunt side of the Jharbar. Baluram died as a result of his head injuries inflicted by accused Danaram. He therefore, held Danaram guilty of the offence u/s 302, IPC. He further held that accused Dewaram and Rawat Ram went along with their father Danaram and had shared a common intention with him to kill Baluram. Accused Rawatram and Dewaram were therefore, convicted u/s 302/34, IPC. The learned Sessions Judge further held that accused Dewa Ram and Rawat Ram were also further guilty u/s 323, IPC for causing injuries to PW 1 Bhoma Ram. The accused were further found guilty under Sections 447 IPC as the field of the occurrence was taken to be in possession of the deceased Baluram at the time of the incident. The three accused persons were, therefore, convicted and sentenced, as mentioned at the very out set. Aggrieved against their convictions, the accused have taken this appeal.

We have heard the learned counsel appearing for the appellants and the learned Public Prosecutor. We have also gone through the case file carefully.

Mr. Singhi, who argued the case on behalf of the appellants, did not challenge the incident and the role assigned to the appellants. He also did not challenge the findings of fact arrived at by the learned Sessions Judge. The only submission made by him is in respect of the nature of offence made out from the death of Baluram. It was argued that Jharbar is a sharp edged weapon. The injuries to the deceased Baluram were struck not with the sharp side but with the blunt side of the Jharbar. There was no bad blood between the deceased and the appellants. The dispute related to the possession of the field. Jharbar is an agricultural implement which a cultivator ordinarily keeps with him. The other two accused Rewat Ram and Dewaram had simple lathies The Jharbar recovered by the police at the instance of accused Danaram is only 2'' 3" in length with an iron blade of only 8" length and 2" width. The accused could have no intention to commit the murder of Baluram. The offence made out is, therefore, not covered by Section 300 and the accused persons were wrongly convicted under Sections 302, IPC. The offence made out, is covered by Section 325 or at the most Section 304 Part II, IPC. The case does not travel beyond these sections. Reliance in support of the contention was placed, on Mohinder Singh and Another Vs. State of Delhi, , Molu and Others Vs. State of Haryana, , Jagroop Singh v. State of Haryana (1981) SCC 768, Subasingh v. State of Punjab 1983 SCC 8 and The State of Maharashtra Vs. Fulchand Dagadoo and others,

It was, on the other hand, contended by the learned Public Prosecutor that the injuries were intentionally caused on the head of the victim by accused Danaram. The injuries were found sufficient in the ordinary course of nature to cause death. The case therefore, falls within the four corners of Clause 3rdly of Section 300, IPC and the offence made out is, therefore, that of murder punishable u/s 302, IPC. Reliance in support of the contention was placed on Veerasing''s case AIR 1985 SC 465. We have taken the respective submissions into consideration.

Since the findinus of facts recorded by the trial Court have not been challenged before us by the learned counsel for the appellants we need not discuss the prosecution evidence at length. The established facts are that the appellants, who are father and sons inter se, went to the field where the deceased Baluram and his son Bhomaram (PW 1) were sowing the Moth Crop. Accused Danaram had a Jharbar with him while the remaining two accused had ordinary lathis with them. Accused Dewaram and Rewat Ram struck blows on the back of Baluram. Baluram fell down. Thereafter accused Dana Ram struck blows on his head with the blunt side of the Jharbar. With this background of the proved facts, we are to examine whether the offence u/s 302, IPC was rightly held as made out against the appellants.

Admittedly, there was no bad-blood between the deceased and the appellants. It is true that the appellants were not happy with the Arbitration Award in respect of the field in which the occurrence had taken place. But the award was given long back and the deceased was in possession of the field for last many years. When the three accused went to Baluram, none of them gave a call to finish him (Baluram) Accused Danaram did not use the sharp side of the Jharbar. It was only with the blunt side of Jharbar that he struck blows to the deceased-victim. Only two blows were struck. The recovery memo Ex. P 18 shows that the Jharbar was only 2'' 3" long fitted with an iron blade of 8" long and 2" wide. The sharp side of the Jharbar was not wielded.

The circumstances do not permit us that the accused had gone with pre meditation and pre-planned design to commit the murder of Baluram. If the intention to commit the murder was there, the sharp side of the Jharbar must have been used. But the sharp-side of the Jharbar was not used.

In Mohindrasingh''s case (supra), the blows to the deceased victim were struck with the wrong-side of the, axe, that is to say, the blunt side. It was observed by their Lordships that if the intention were to kill, the wrong side of the axe would not have been used. The conviction was altered from Section 302 to that u/s 325, IPC. In Molu''s case (supra) there was no evidence to show that any of the accused ordered the killing of the deceased-persons or incited or in any way expressed a desire to kill the deceased-persons at the spot. The injuries were inflicted with blunt weapons like lathis. The offence committed was taken to be u/s 304 Part II and not u/s 302 IPC. In Jagroop''s case (supra), it was the blunt side of a Gandasa with which the injuries were inflicted on the head of the deceased. In Subha Singh''s case (supra), the injury was caused by the blunt side of a Kassi and the offence was taken to be that u/s 304 Part II and not u/s 302 IPC. In the case of Munshi and Ors. (supra), there was no pre-meditation and the dispute arose on account of damaging the crop. The offence was taken to be that u/s 304 Part II IPC.

As discussed above, here in the instant case two injuries on the head of the victim were inflicted not with the sharp side of the Jharbar but with its wrong (blunt or lathi) side. Now the Jharbar is an agricultural implement ordinarily kept by a cultivator with him to cut and remove the bushes etc. In the instant case, the Jharbar was only 2'' 3" long with its blade 8" long and 2" wide. None of the accused persons gave a call or shouted to kill Baluram. There is nothing on record to show that the accused person expressed a desire in one way or the other to kill Baluram. There is again nothing to show that the accused intended to cause deliberate murder of Baluram. There was no pre-designed plan or pre-meditation to commit his murder. We are, therefore, of the opinion that the case does not fall within the First Four Clauses of Section 300, IPC. In as much as the death has taken place, the case must atleast come within the Second Part of Section 304, IPC as the act was done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death. We are, therefore, unable to maintain the conviction of the appellants u/s 302, IPC. They should be, however, convicted under the Second Part of Section 304, IPC.

Accused Danaram and Dewaram were arrested on July 21,1974 while accused Rewat Ram was arrested on August 3, 1974. Thereafter they remained in custody and their sentences were suspended by this Court on July 19, 1978. They, thus, remained in custody for a period of more than 4-1/2 years including the remission.

In the result,

(1) The appeal of accused Danaram, Dewaram and Rewat Ram is partly allowed. Their conviction u/s 302 or 302/34, IPC and the sentence awarded there under are set-aside. Instead, they are convicted u/s 304 Part II, IPC and each is sentenced to imprisonment for the period already undergone by them.

(2) Their convictions and the sentences for the remaining offences are maintained;

(3) The sentences shall run concurrently;

(4) Since they have already served out the sentences, they need not surrender. Their bail bonds shall stand cancelled.

The appeal shall stand accordingly disposed of.