Shyam Lal vs State Of Rajasthan

The judgment dated 19th July, 2013 passed by the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B. Criminal Appeal Nos. 441 of 2008 and 225 of 2008 confirming the judgment and order of conviction passed by the Special Court of Special Judge (Prevention of SAATI) Rajasthan-cum Additional Sessions Judge, Jaipur in Criminal Case No. 12 of 2006 for the offences under Sections 302/34, 323 and 325 read with 34 of the Indian Penal Code (IPC) and sentencing them to undergo imprisonment for life and to pay a fine of Rs.5,000/- is called in question.

The case of the prosecution, in brief, is that at about 10.00 p.m. on 5th May, 2004 when the informant Gendi Lal (PW-4), Sharwan Kumar (PW-2), their uncle Chhotelal and Kanaram were sitting at the shop at Benar Road, all of a sudden the accused party, namely, Nanag Ram, Shyamlal Mali, Kanaram Bihari, Nathulal Sharma and 2-3 other persons came to the spot with sharp edged weapons and other weapons like knife, iron rod etc., and assaulted Chhotelal, Kanaram and Sharwan Kumar consequent upon which these persons sustained grievous injuries. After hearing the hue and cry, the family members of the injured also rushed to the spot. Chhotelal, who was grievously injured, was shifted to a hospital, and at the hospital, he was declared dead. Kanaram (PW18), who was also injured, was also hospitalised in a serious condition. It is relevant to note that the said Kanaram is none other than the father of the accused/appellants. As mentioned supra, the Trial Court convicted the accused under Sections 302/34, apart from other sections, as affirmed by the High Court.

Heard Mr. Abhishek Singh, learned counsel appearing on behalf of the appellants and Dr. Manish Singhvi, learned senior counsel appearing on behalf of the State of Rajasthan.

Though Mr. Abhishek Singh, learned counsel for the appellants, has taken us through the entire material on record and tried to convince us for acquittal of both the accused, on going through the material on record and the judgment of the courts below, we are of the opinion that it is not a fit case for acquitting the accused. The presence of the accused cannot be disputed on the spot since they were also injured in the very incident. The prosecution has heavily relied on the evidence of injured eye-witnesses, i.e., Sharwan Kumar (PW-2) and Kanaram (PW-18), apart from other witnesses, to prove that the incident took place due to enmity between the parties in respect of an agricultural land upon which two rooms were constructed. It is the defence of the accused that the complainants had demolished those two rooms and, as a result, the scuffle took place at the spot. Be that as it may, the evidence of PW-2 and PW-18 clearly proves the overt acts of the present appellants in the incident in question. As mentioned supra, the presence of the accused also cannot be doubted inasmuch as they are also injured.

However, learned counsel for the appellant is justified in arguing that the case may fall under Section 304 Part II IPC. In the case at hand, the prosecution has suppressed the injuries on the accused. The evidence of the Investigating Officer (PW-24) discloses that both the accused were injured and were taken to hospital. Exhibits P.32 and P.33, the arrest memos pertaining to these two accused would clearly reveal that both the injured accused were arrested from the hospital. Exhibit P.11, the copy of the report Daily Dairy, Police Station Harmada, Jaipur discloses that the accused were seriously injured and were unfit to give their statements during the course of investigation. These facts clearly prove that the accused had sustained injuries of a serious nature and they were unfit to give their statements after the incident. These facts are suppressed by the prosecution. But the fact remains that the incident took place at the same time as placed before the Court by the prosecution. As mentioned supra, PW-2 and PW-18 are the injured eye witnesses. Accused were also injured with serious injuries. PW-18 is none other than the father of the accused. Had the incident not taken place, he would not have deposed against his sons.

The defence of the accused is that the complainants' group came to the spot and demolished the rooms constructed by the accused on a disputed property. At the point of preventing the demolition of the rooms, the quarrel took place, consequent upon which, Chhotelal lost his life and four persons got injured. It seems that the incident took place on the spur of the moment and that the complainants had contributed to the incident in question inasmuch as they appear to be the aggressors. The Investigating Officer had admitted that the complainants had demolished the rooms and that the incident had taken place because of the same. Having regard to the totality of the facts and circumstances of the case, we are of the opinion that the case may fall under Section 304 Part II IPC inasmuch as the offence may fall under Exception 4 to Section 300 IPC.

It is brought to the notice of this Court that the accused Shyam Lal is already in custody since eight years and the accused Nanag Ram has already suffered imprisonment for about 13 years and he is on bail as of now. Looking to the entire evidence and other circumstances, the accused may be imposed sentence of rigorous imprisonment for a period of ten years. The fine imposed by the Trial Court, as affirmed by the High Court, remains in tact.

Ordered accordingly.

Since the appellant Nanag Ram has already undergone the sentence of imprisonment, he shall not be taken into custody any more. His bail bonds stand discharged.

So far as the accused Shyam Lal is concerned, he shall undergo the rest of sentence. He is entitled to the benefit of set off of the period already undergone by him as contemplated under Section 428 of the Code of Criminal Procedure.

The appeals are, accordingly, allowed in part.