Sanwata and Others vs State of Rajasthan

Surendra Nath Bhargava, J.—This is an appeal directed against the judgment dated 26th October, 1987, passed by the Additional Sessions Judge No. 2, Alwar, convicting and sentencing the accused-appellants as under:

Sanwata and Sunda u/s 147, IPC Six months'' R.I. each; u/s 323/149, IPC Six months'' R.I. each; u/s 302/149, IPC Life imprisonment and a fine of Rs. 500/- each and in default of payment Of fine, two months'' R.I. to each of them.

Sultan u/s 302, IPC Life imprisonment and a fine of Rs. 500/-, in default of payment of fine, 6 months'' R.I.; u/s 147, IPC 6 months'' R.I.; u/s 323/149, IPC 6 months'' R.I.

Jagdish u/s 147, IPC 6 months'' R.I.; u/s 323, IPC 6 months'' R.I.; u/s 302/149, IPC Life imprisonment and a fine of Rs. 500/- in default of payment of fine, six months'' R.I.

Babu Lal PW 3 submitted a written report Ex. P 5 on 4-7-1985 at 9.30 p.m. at Police Station, Bansur, District Alwar, stating there in that on that day at about 4 p.m. his uncle Sukh Ram had gone to his premises to tie the bullocks. Sanwata accused appellant objected to it and warned Sukh Ram that he will kill him (Sukh Ram), where after he left and returned along with his sons Sultan, Banwari, Sunda and Jagdish who were all armed with Lathis. Sultan inflicted a Lathi blow on the head of Sukh Ram, who was unarmed. As a result, he fell down and there upon, all other accused persons gave beating to Sukh Ram, by Lathis. When Babu Lal and Ors. went there to object, Babu Lal also received injuries. His uncle Sukh Ram died on the spot and he had come to the Police Station to make the report.

On the basis of this report, a regular FIR Ex. P 6 was registered, u/s 302 read with Section 147, 148, 149 and 323. After usual investigation, the case was challaned. Learned Magistrate committed the case to the court of Sessions and the learned Additional Sessions Judge, after trial, convicted and sentenced the accused appellants as aforesaid.

We have carefully gone through the judgment of the trial court as also the record of the case. The prosecution in this case has placed reliance on the evidence of PW 3 Babu Lal, PW 4 Ramesh sons of Sheo Dan and also PW 5 Sheo Dan himself It will be interesting to note that Sheo Dan, Sanwata and deceased Sukh Ram are real brothers. One brother has already died and another brother Sheo Dan and his three sons have appeared as eye witnesses against accused persons Sanwata and his three living sons--Sultan, Jagdish and Sunda. Another son of Sanwata namely Banwari had died during the pendency of these proceedings. Out of these four eye witnesses, PW 6 Ram Karan has been declared hostile. Sheo Dan and his two others sons PW 3 Babu Lal and PW 4 Ramesh have supported the prosecution story. PW 3 Babu Lal and PW 4 Ramesh have also received injuries at the time of the incident vide Ex. P 18 and Ex. P 17 respectively and these injuries are simple in nature, caused by blunt object and not on vital parts, where as deceased Sukh Ram had received seven injuries in all, vide Ex. P 20, out of which injury No. 6 and 7 are abrasions and injury Nos. 2, 3 and 5 are result of Injury Nos. 1 and the only other injury on the head is Injury No. 4. Both Injuries Nos. 1 and 4 are caused by blunt object. The doctor who conducted the post mortem has not been examined. Post mortem report Ex. P 20 has been formally proved by a Compounder PW 9 Jagdish Singh. Accused Sultan has filed a written statement u/s 313, Cr.PC in which he has stated that on the day of incident, Sukh Ram had come to his premises for being his bullocks, and Sultan had objected to it, where upon Sukh Ram got annoyed and started abusing him. Sultan asked him not to hurl abuses or tie the cattle. There-opon, Sukh Ram gave him beating by Lathi. Ramkaran also came and he also hurled Lathi blows as a result Sukh Ram received injuries. Other villagers came and intervened. Sultan had also received as many as four injuries, all of them are simple, Caused by blunt object, and one of them is on the face.

Learned Counsel for the appellants has submitted, that the prosecution has failed to examine wife of Sheo Dan and one Meena who were admittedly present at the time of the incident, according to the prosecution witnesses themselves. He has further submitted that the prosecution has also changed the place of occurrence; Ex. P 5 FIR, the place of incident is Sukh Ram-Ka-Guwada where as in the court during the trial, the place of incident has been shifted to the field of Bahadur. He has further submitted that in Ex. P 5 Sultan is alleged to have had Lathi by which he inflicted the blow on the deceased, where as during trial and even at the time of investigation and statements of prosecution witnesses u/s 161, Cr.PC weapon Lathi has been changed by Jely, and on the information given by Sultan Ex. P 9, Jely has been recovered vide recovery memo Ex. P 10 and the same has also been found to be blood stained and having same blood group as that of the deceased vide Ex. P 16.

Learned Counsel for the appellants has further submitted that the prosecution has failed to explain the injuries of accused Sultan and, therefore, the prosecution case should not be believed. In this connection, he has placed reliance on Lakshmi Singh and Others Vs. State of Bihar, , Pyare Lal and Others Vs. State of Rajasthan, and Fatya alias Fateh Lal and Others Vs. State of Rajasthan,

Learned Counsel for the appellants has further submitted that since Sultan bad received injuries and one of them was on his face, he had a right of private defence and in this connection has placed reliance on 1985 RCC 172.

Learned Counsel for the appellants has further submitted that the defence version is more probable than the prosecution story, specially in view of the statement of PW 6 Ram Karan who was examined as an eye witness and also is son of Sheo Dan who had himself appeared as PW 5 and his two other sons Babu Lal and Ramesh have not supported the prosecution story. In the alternative, he has also submitted that even if the whole prosecution story is believed as such, the appellants cannot be held guilty u/s 302 and 302/149 IPC and their case should fall only u/s 325 IPC, and in this connection, he has placed reliance on Ram Lal Vs. Delhi Administration, and that the accused appellants should be dealt with leniently, keeping in view the facts and circumstances of the case. In this connection, he has placed reliance on Mohinder Pal Jolly Vs. State of Punjab, , Bishnu Deo Shaw Vs. State of West Bengal, and Yogendra Morarji Vs. State of Gujarat,

On the other hand, learned Public Prosecutor has supported the judgment of the trial court.

We have given our thoughtful consideration to the whole matter and have also gone through the prosecution evidence and also kept in mind the various submissions made at the bar, as also the authorities relied.

It is a typical case where a brother having died in the incident, his younger brother with his sons, is appearing as eye witness against another brother and his sons who are accused. Accused Sultan has admitted that the incident had happened, though he has denied the presence of other three accused appellants, and therefore, we are of the view that the deceased Sukh Ram died during the incident and there is sufficient evidence on record to come to the conclusion that he had died as a result of injury inflicted by the accused appellants. Deceased Sukhram had received two injuries on his head by blunt object. According to the prosecution witnesses, Sultan had inflicted only one blow on the head of the deceased In the absence of medical evidence, the doctor having not been examined, there is no material on record to come to the conclusion as to which of the two injuries was fatal either injury No. 1 or injury No. 4, and the prosecution is silent as to which of the injuries-either injury No. 1 or 4 was caused by Sultan. At best, we can infer that one of the two injuries had been caused by Sultan and it is very difficult to say whether the blow given by Sultan was one which ultimately proved to be fatal as admittedly, there are two injuries on the head and accused Sultan had given only one blow on the head of the deceased and the other injury must have been caused by some other accused person. Therefore benefit of doubt must be given to accused Sultan. He might have given the fatal blow or he may have given the blow which did not prove fatal. In these circumstances, appellant Sultan''s conviction u/s 302 IPC is wholly incorrect and is not maintainable. He and his other companions (other accused persons) had the common intention to cause injury to the deceased Sukhram therefore, they can be convicted only u/s 325 Rule with 34 IPC, as has been held in Ram Lal (supra).

Thus, we set aside the conviction of the accused-appellants u/s 302 or 302/149 IPC and all the accused appellants are convicted u/s 325 read with 34 IPC, and their conviction u/s 147 IPC as also u/s 323 read with 149 IPC is maintained.

Now coming to the question about quantum of punishment, in our opinion looking to the facts and circumstances of the case, there was a dispute between two brothers on a very trifle matter regarding being of bullocks in the premises. It was all of a sudden that the incident had taken place without any common object or pre-meditation, and further that father and his three sons are all accused appellants before us. Therefore, we are of the opinion that interest of justice will be met if the accused appellants are sentenced to the term of imprisonment already undergone which is nearly 16 months in the case of Sultan and nearly 11 months in the case of other three accused appellants. The fine imposed on the accused appellants i.e. Rs. 500/-is increased to Rs. 1000/- each, in default of payment of fine, each of them will undergo further R.I. for six months.

In the result, the appeal is partly allowed, the conviction of the accused appellants, recorded by the learned Sessions Judge, Alwar u/s 301 IPC and 302/149 IPC is set aside; instead each of the appellants is convicted u/s 325 IPC Rule with 34 IPC and sentenced to the imprisonment already undergone and a fine of Rs. 1,000/- each, in default of payment of fine each of them will undergo a further R.I. for six months. Their conviction and sentences passed by the trial court u/s 147 IPC and u/s 323/149 IPC are maintained. One month''s time is allowed to the accused appellants for depositing the amount of fine. They are in jail. They should be released forthwith if not required in any other case.