Ramswaroop vs StateOf Rajasthan

This criminal appeal has been filed under Section 374 Cr.P.C. against the impugned judgment and order dated 15.02.2018 passed by learned Additional Sessions Judge Neem Ka Thana, District Sikar (hereinafter referred to be as 'the court below') in Sessions Case No. 8/2014 whereby the court below has convicted and sentenced the appellant as under:-

Under Section 341 I.P.C.: One month simple imprisonment and fine Rs. 200/- and in default to further undergo 3 days simple imprisonment;

Under Section 323 I.P.C.: Six months rigorous imprisonment and fine Rs. 500/- and in default to further undergo 15 days simple imprisonment and;

Under Section 302 I.P.C.: L.I. and fine Rs. 50,000/- and in default to further undergo 6 months rigorous imprisonment;

It was directed after depositing the fine amount to pay Rs. 40,000/- as compensation to the wife of deceased Malaram.

Briefly stated case of the prosecution is that on 9.9.2013 complainant Suresh son of Malaram had submitted a written report stating that his father Malaram, mother Kamla Devi, sister-in-law Bhagwati Devi were working in the field, and at about 8.00 A.M. in the morning, appellant Ramswaroop @ Pappu, along with Dataram, Dholu, Narsi, Mooli and 3-4 others resident of Ghatiwala started cutting the grass in front of the field, and when his parents, sister-in-law declined to do so, then they reached at hillock (Doongri) and they all started beatings with his parents, sister-in-law with slaps, stone and in quarrel, due to stone assault, his father sustained head injury and was taken at Government Hospital, Neem ka Thana, Sikar and subsequently referred to Jaipur and at present he is admitted in Jaipur for treatment. This incident is seen by Hazari Lal as he was busy in grazing his goats and thereafter got busy in treatment of his father and at last prayed to do appropriate action. On this report Police registered an F.I.R. under section 143, 141, 336 and 323 I.P.C. Subsequently the father of complainant Malaram was succumbed (expired) at 3:45 A.M. on 10.9.2013.

3 . Thereafter police added the section 302 I.P.C. and initiated the investigation. During investigation all prosecution witnesses changed the version of the F.I.R. and recorded their statements stating that Ramswaroop alias Pappu was having MOOSAL (wooden log) is in hand and a charge-sheet under section 341, 323, 336 and 302 I.P.C. was filed against the appellant along with co-accused Dataram, Smt. Santi Devi W/o. Ramswaroop, Smt. Mooli W/o. Dataram.

After filling of the charge sheet, matter was committed to the court of Additional Sessions Judge, Neem Ka Thana, Sikar for trial and Additional Sessions Judge framed the charges against the appellant and other co-accused persons under section 341, 323, 336 and 302 I.P.C. read with section 34 of I.P.C. The appellant and other coaccused person declined to accept the charges and claimed trial.

5 . Thereafter, the prosecution in order to prove its case produced P.W. 1 Hardan, P.W. 2 Suresh, P.W. 3 Dr. Kamlesh Yadav, P.W. 4 Hazari Lal, P.W. 5 Bhawani, P.W. 6 Damodar, P.W. 7 Prakash, P.W. 8 Bhagwati, P.W. 9 Sheesham, P.W. 10 Ramswaroop, P.W. 11 Kaushalya Devi, P.W. 12 Lili, P.W. 13 Dholaram, P.W. 14 Devaram, P.W. 15 Sanwatram, P.W. 16 Suresh Kumar, P.W. 17 Kamla Devi, P.W. 18 Richpal Singh, P.W. 19 Anita, P.W. 20 Chetram, P.W. 21 Dr. Priyanka Sharma and P.W. 22 Sohanlal as prosecution witnesses and in addition to the oral evidence, the prosecution has also exhibited 26 documents and articles.

After completion of the prosecution evidence, the appellant was examined under section 313 Cr.P.C. and he has stated that prosecution witnesses deposed against him due to enmity. Deceased Malaram was died due to falling from hill on a big stone and eight documents were exhibited.

After hearing final arguments of prosecution and defence, the learned Trial Court vide impugned judgment & order dated 15.2.2018 convicted the co-accused Dataram, Mooli Devi, Santi Devi under section 341 and 323 I.P.C. and directed to release them on probation for 1 year subject to submit the bond and security of Rs. 10,000/- each and further directed to impose the fine of Rs. 1000/- each under section 5 of Probation of Offenders Act and the present appellant was directed to be convicted under section 341 I.P.C. to undergo 1 month Simple Imprisonment and fine Rs. 2000/- and in default to further undergo 3 days Simple Imprisonment; and under section 323 I.P.C. to undergo 6 months rigorous Imprisonment and fine of Rs. 500/- and in default to further undergo 15 days Simple Imprisonment; and under section 302 I.P.C. to undergo Life Imprisonment and Fine Rs. 50,000/- and in default to further undergo 6 months Rigorous Imprisonment and it was directed after depositing the fine amount to pay Rs. 40,000/- as compensation to the wife of deceased Malaram.

8 . Learned counsel for the appellant vehemently submitted that the impugned judgment under appeal dated 15.2.2018 passed by the court below is illegal, arbitrary and not sustainable in the eyes of law.

9 . It has been stated that the prosecution has failed to prove the case beyond reasonable doubt. It is settled law of jurisprudence that prosecution should have prove its case beyond the reasonable doubt and if any doubt is arise, the accused is entitled to be acquitted on the basis of benefit of doubt. In the FIR itself, complainant Suresh Kumar stated that his father had sustained head injury due to stone assault. As a matter of fact, the place of occurrence of the hill area and possibility cannot be ruled out that deceased expired due to falling on the stone. Hence, in such circumstances, the appellant is liable to be acquitted.

Further, it is submitted that all the prosecution witnesses changed the original version during the investigation and all have shown the MOOSAL in hand of present appellant. It is the false improvement made by the investigation Officer for the reason that the MOOSAL is the kitchen item of the rural house hold goods and having MOOSAL in hand of the appellant is not natural looking to the place of incident and looking to the genesis of incident. As a matter of fact, there was dispute over the land and quarrel was started between the parties in the field. Thus it is out of imagination that accused appellant would carry the kitchen item MOOSAL in the field.

Counsel for the appellant has also submitted that the prosecution witnesses PW-1 Hardan, PW-4 Hazari Lal who had been shown sole eye witness have declared hostile. Moreover, PW4, who is an independent eye witness, has stated that stone was thrown but who thrown, he did not see. The statement of PW-4 who is the independent witness suggest that deceased was died due to stone head injury not by the MOOSAL. Thus, in the present facts & circumstances, all the prosecution witnesses improved the story showing the MOOSAL in hand of the appellant.

It has also been averred that in accordance to the postmortem report, deceased Malaram sustained two injuries on his head. First injury is on right temporal region measuring 1cmx1cm of abrasion and that it is simple in nature and another fatal injury no. 2 was on left occipital parietal region measuring 6cmx 3 cm. Hence, looking to the postmortem report, and testimony of the PW-21 Dr. Priyanka Sharma, inference can be drawn that deceased could have died due to falling on the stone for the reason that deceased Malaram was 70 years old person.

Learned counsel also stated that no case is made out against the appellant but if this court reaches on this conclusion thaklt deceased Dataram died due to stone injury either by throwing stone or falling on stone, then in such circumstances, it is not cleared that who thrown the stone on head of the deceased Malaram for the reason that all the prosecution witnesses stated in their statements falsely that appellant inflicted MOOSAL blow. Hence, in these circumstances, in reality, deceased died due to throwing stone but who thrown the stone is not clear on the perusal of prosecution witnesses. Thus, the appellant is entitled to be acquitted on the ground of giving benefit of doubt.

It is submitted that the recovery of MOOSAL is also doubtful. PW-1 Hardan declared hostile and other witnesses PW-2 Sohan Lal stated that room where from MOOSAL was recovered was facing in north direction but in Ex. P-3, room is facing in West direction. Further PW-20 Chetram earlier Investigating Officer who had prepared the site plan, PW-1 Hardan not shown any house of the appellant. Hence, recovery of MOOSAL is doubtful.

It is also submitted that looking to the facts & circumstances of the case, no case is made out against the present appellant but in alternate this case may be exception of Sec. 300 IPC and conviction can be made lesser under Sec. 304 part II IPC looking to the genesis of incident.

Learned counsel for the appellant stated that there is lot of improvement and contradiction in the testimony of the prosecution witnesses. The complainant Suresh Kumar is not the eye witness of the incident and stated this statement that PW-4 Hazari lal was present at the place of incident but Hazari Lal has been declared hostile and he is only independent eye witness who has declared hostile and other witnesses PW-8 Bhagwati is shown eye witness but she is the interested witness and relative of the deceased. Similarly, PW-11 Kaushalya Devi is also related and interested witness and PW-12 Lili is also interested and related witness. Hence, in such circumstances, their testimony cannot be considered trustworthy and reliable. Hence, in these circumstances, appellant is liable to be acquitted.

1 7 . It is also submitted that the learned trial Court committed error in not considering the material omissions and contradictions appeared in the statement of prosecution witnesses and also in discarding defence version. Findings of the learned trial Court are erroneous in the eyes of law. Therefore, the judgment is neither legal nor proper or correct, but during arguments learned counsel appearing for all the appellant has submitted that in alternate on the facts and circumstances, if the offence alleged is found proved against the appellant, it falls under Section 304 Part-I of IPC and not under Section 302 of IPC.

On the other hand, learned Public Prosecutor appearing for State, relied upon the discussion contained in the judgment of the court below in support of the prosecution case with the submission that the appellant was rightly convicted and there was no reason to interfere with the same. He has also opposed the prayer made on behalf of appellant stating that in furtherance of the common intention of co-accused persons, appellant gave MOOSAL blow on vital part of the deceased, which caused the death. Due to act of the appellant, an innocent person has lost his life. The appellant has assaulted the deceased by entering in his field which shows his intention. He was having MOOSAL in his hand and used it as a weapon of assault and gave blow on the vital part of the body of the deceased, resulting in his death, therefore, his act is very well covered under Section 302 of IPC and he is not entitled for any leniency.

However, learned Public Prosecutor fairly admitted that there is no evidence on record to establish premeditation, that the incident took place at the spur of time.

20 . We have heard learned counsel for the parties at length and perused the impugned judgment and the materials placed on record and considered the alternate prayer made by the accused appellant to alter the conviction from offence under Section 302 IPC to offence under Section 304 Part-I IPC as the prosecution case rests on eye witnesses account.

To bring home the guilt of the accused, the prosecution case rests on evidence of PW-8 Bhagwati Devi and PW-17 Kamla Devi who are injured eye witnesses of incident.

PW-8 Bhagwati Devi, an eye witness, who was present at the time of incident, has deposed that she and her father-in-law Mala Ram were at agriculture field and her mother-in-law Kamli Devi was cutting grass at the field of Doongri. Santi and Mooli came there and started quarrel with her mother-in-law, but on the issue of cutting grass, both started beating to her mother-in-law. She and her father-in-law tried to stop the quarrel. In the meantime, accused Ram Swaroop and Data Ram came there. Ramswaroop was having MOOSAL in his hand and he gave a severe blow on the head of her father-in-law Malaram. Upon that, father-in-law fell down and all the accused persons started beatings.

2 3 . PW-17 Kamla Devi, another eye witness, who was present at the place of incident, has deposed that on the date of incident, she along with Bhagwati was in agriculture field, accused Ramswaroop, Santi, Mooli and Dataram came there. Accused Ramswaroop was having MOOSAL in his hand and he inflicted severe blow on the head of my husband Malaram.

PW-8 Bhagwati Devi and PW-17 Kamla Devi deposed that due to beating, both sustained injuries and they were examined medically.

The prosecution witness Dr. Kamlesh Yadav (PW-3), deposed that on 9.9.2013, he examined injured Kamla Devi w/o. Malaram and found following injuries vide Ex. P-6, on her person:

(I) Contusion 3x2 cm left thumb opinion received blunt

(II) Contusion 1x1 cm left side of parietal region of head simple blunt

2 6 . He further deposed that he on the same day, examined Bhagoti Devi w/o. Sawantram, and found following injuries vide Ex. P-7 on her person:

(I) Abrasion 2x1 cm left wrist simple blunt

(II) Backpain back of chest simple blunt

2 7 . Moreover, though PW-4 Hazari Lal, who had been shown independent eye witness, has been declared hostile. But this independent eye witness has deposed that quarrel took place between ladies belonging to the family of Malaram and accused Ramswaroop. On the issue of cutting of the grass, accused Malaram sustained injuries.

It is manifest from the evidence of the prosecution witnesses that there was dispute between the appellant and the deceased regarding agriculture land. The genesis of the occurrence was that while family members of complainant party were working at field, then family members of accused party came at Dongli in front of their field and started cutting grass. On stopping to cut grass, accused persons started beating with hands, legs and stones and during that scuffle, head injury was attributed to Ramswaroop @ Pappu and participation of accused-appellant in the incident is established on the basis of statement of prosecution witnesses. As per post mortem report, following injuries were found on the person of deceased Malaram:

"Hematoma is present, Lacerated wound 2x2x1 cm on left temporal lobe laterally. Brain is soft. All injuries are ante mortem, within 24 hrs prior to death.

Following samples preserved for chemical examination:

(I) One scaled grass jar containing pieces of liner, spleen both side kidneys in s.s. common salt. (2) One scaled glass jar containing pieces of small intestines, stomach are whole with their contents in s.s. common salt. (3) one scaled glass bottle containing plain blood.

Following samples preserved for histopathological examination:

One scaled grass jar containing pieces of linear, spleen, both side kidneys, both lungs, both side brain, and heart as a whole 10% formalin.

Following sample preserved for ABO-Rh blood grouping and cross matching and as desired by I/o. police:-

(1) One scaled glass bottle containing dried, blood soaked gauze piece.

OPINION

Cause of death is coma due to ante mortem head injury (scalp injury no. 2) as per the postmortem findings, sufficient to cause death in ordinary course of nature. To rule out presence of common poisons and pathology above mentioned viscera preserved, sealed and handed over to accompanying police persons."

In the instant case, witnesses who have deposed against accused are close relatives and had suffered injuries in occurrence, Their version is consistent and nothing has been elicited in cross-examination to shake their testimony. Thus the testimony of PW-8 Bhagwati Devi and PW-17 Kamla Devi deserve acceptance and no adverse inference can be drawn because PW-4 independent witness, who has been cited by prosecution, turned hostile even according to PW-4. Their presence at the scene of occurrence cannot be doubted.

On consideration of the entirety of the evidence, it can safely be concluded that the occurrence took place in the heat of the moment and the assault was made without premeditation at the spur of time. The fact that the appellant may have rushed to his house and returned with deadly weapon, is not sufficient to infer an intention to kill, both because of the genesis of the occurrence and the single assault by the appellant, coupled with the duration of the entire episode for 1 ½ to 2 minutes. Had there been any intention to do away with the life of the deceased, nothing prevented the appellant from making a second assault to ensure his death, rather than to have run away. The intention appears more to have been to teach a lesson by the venting of ire by an irked neighbour, due to cutting of grass. But in the nature of weapon used, the assault made on the head, knowledge that death was likely to ensue will have to be attributed to the appellant.

On the basis of analysis of the evidence of prosecution witnesses made above, it is found cogent, credible and truthful. No reason appears to have been made to rope an innocent person by prosecution witnesses, particularly when the ocular evidence is corroborated by the medical evidence. In the present case, the incident took place without any premeditation in a sudden fight at the spur of the moment, which the accused appellant Ramswaroop cannot be said to have taken any undue advantage or acted in a cruel or unusual manner. The head injury has been attributed to none other than accused appellant Ramswaroop @ Pappu, therefore, his offence would not be culpable homicide amounting to murder but the same would be culpable homicide not amount to murder with both intention and knowledge of the fact that injury which he caused was likely to result in death of Malaram. Therefore, offence of the accused appellant would be punishable under Sec. 304 Part-I IPC and not under Section 302 IPC.

In the result, we partly accept the appeal and alter the conviction of accusedappellant Ramswaroop @ Pappu for offence under Sec. 302 of the IPC to one under Sec. 304 part I of the IPC. Having held that accused-appellant Ramswaroop is guilty of offence under Sec. 304 Part I of the IPC, we award him sentence of rigorous imprisonment of 07 years with fine of Rs. 50,000/-; and in default of payment of fine, he has to undergo simple imprisonment for six months. It is further ordered that out of aforesaid fine amount, Rs. 40,000/- shall be paid to the wife of deceased Malaram as compensation. The sentence imposed in the appeal is modified in the above terms. The appeal is accordingly allowed in part.

Keeping, however, in view of the provisions of Section 437-A of the Code of Criminal Procedure, appellant Ram Swaroop @ Pappu S/o. Bhagwana Ram is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/-, and a surety bond in the like amount before the Registrar (Judl.) of this court, which shall be effective for a period of six months undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court.