HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 107/2019
1. Om Prakash S/o Krishna Ram, Aged About 28 Years, B/c
Meghwal, R/o Village Baddu, Tehsil Parbatsar, District
Naguar (Raj). (At present lodged at Central Jail, Ajmer).
2. Baduri Spouse/o Krishna Ram, Aged About 28 Years, B/c
Meghwal, R/o Village Baddu, Tehsil Parbatsar, District
Nagaur (Raj)
----Appellants
Versus
State, Through PP
----Respondent
For Appellant(s) : Mr. Ravindra Acharya
For Respondent(s) : Mr. B.R. Bishnoi, AGC
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE SAMEER JAIN
JUDGMENT
Judgment pronounced on ::: 26/11/2021
Judgment reserved on ::: 17/11/2021
BY THE COURT : (PER HON'BLE MEHTA, J.)
The appellants herein have preferred the instant appeal under Section 374 (2) Cr.P.C. being aggrieved of the judgment dated 29.03.2019 passed by learned Addl. Sessions Judge No.1, Parbatsar, District Nagaur in Sessions Case No.11/11 (CIS No.102/14) whereby the appellants have been convicted and sentenced as below:-
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Offence Sentences Fine Sentence in lieu
of default of
payment of fine
Section Life Imprisonment Rs.20,000/- 2 Years' Additional
302/34 IPC S.I.
Brief facts relevant and essential for disposal of the instant appeal are noted hereinbelow:-
Suresh (PW.7) lodged a written report (Ex.P/7) to the SHO PS Gachchhipura District Nagaur on 10.01.2011 alleging inter alia that on the previous day in the afternoon at about 2-3 pm, a dispute flared up on account of discharge of water from an outlet. In this process, Om Prakash and Asuram, sons of Kishana Ram and Baduri, wife of Kishana Ram trespassed into their house and started assaulting them with lathi, sword and axe. The informant, his grandmother and his grandfather were all beaten up. His grandfather received a significant injury on his head. The accused persons also snatched a sum of Rs.20,000/- and a gold ring during the melee. A hue and cry was raised on which, Ghanshyam and Manohar came around and saved them. On the basis of this report, FIR No.07/2011 (Ex.P/8) came to be registered at the Police Station Gachchhipura, District Nagaur for the offences punishable under Sections 341, 323, 324, 392 and 307 IPC and investigation was commenced. The injuries of Bhanwarlal (Grandfather of the first informant) were examined by Dr. Sagir Ahmad (PW.9) who issued the medico-legal report (Ex.P/9) wherein, the following injuries were noticed:- (Downloaded on 26/11/2021 at 09:03:48 PM)
(3 of 10) [CRLAD-107/2019] (1) Lacerated wound 4 x 1/4 inch x bone deep on the middle of the head.
(2) Lacerated wound 2 x 1/2inch x bone deep on the backside of the head.
The doctor did not take note of any abnormality in the vital signs of the injured. No complaint of vomiting etc. was noticeable when he was examined.
Shri Bhanwarlal passed away on 10.01.2011 and his dead body was subjected to autopsy at the J.L.N. Medical College & Hospital, Ajmer by Dr. Nandlal (PW.10) who, prepared the post- mortem report (Ex.P/10) wherein, the following injuries were noticed:-
1. Stitched wound 8 cms long associated with swelling on the vertex of the head.
2. Stitched would 4 cms long associated with swelling on the occipital region of the head.
3. Hematoma 6 x 4 cms on the left fronto-parietal region On dissection of the head, hematoma was noticeable on the left fronto-parietal vertex and occipital regions. The doctor however, did not notice any fracture under the external injuries. No direct damage was noticed on the brain. Subdural hematoma was noticed on the entire surface of the brain which was congested. The medical jurist opined that the above injuries were ante-mortem in nature. The injuries Nos. 1 & 2 were collectively and individually life threatening and sufficient to cause death. The usual investigation was undertaken. The accused persons were (Downloaded on 26/11/2021 at 09:03:48 PM) (4 of 10) [CRLAD-107/2019] arrested. Recovery of lathi was effected at the instance of the accused Om Prakash. A sword was recovered from the accused Asuram. Finally, a charge-sheet came to be filed against the accused appellants and Asuram for the offence punishable under Section 302 read with Section 34 of the IPC. The case was committed to the Court of Addl. Sessions Judge No.1, Parbatsar for trial where charges were framed against the accused in these terms. They pleaded not guilty and claimed trial. The prosecution examined as many as 17 witnesses, exhibited 27 documents and 7 articles to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against them in the prosecution evidence, the accused denied the same, claimed to be innocent and stated that they had been falsely implicated. While the trial was proceeding, the accused Asuram passed away and hence, the proceedings as against him were dropped. The two appellants herein were convicted and sentenced as above. Hence, they have preferred the instant appeal for assailing the impugned judgment dated 29.03.2019.
Shri Ravindra Acharya, learned counsel representing the appellants, vehemently and fervently contended that the entire prosecution case is false and fabricated. The incident took place on a trivial issue of a dirty water flowing out from the house of the complainant party and causing nuisance to the accused. A free fight ensued wherein, lathi blows were caused to Shri Bhanwarlal which were totally superficial in nature. There was no intention on part of the accused to inflict such injuries which could cause the death of Shri Bhanwarlal. As a matter of fact, Shri Bhanwarlal (Downloaded on 26/11/2021 at 09:03:48 PM) (5 of 10) [CRLAD-107/2019] expired because of improper treatment. He urged that on a perusal of the FIR and the evidence of the material prosecution witnesses viz. PW.5 Manoharlal, PW.6 Ganpatram @ Ghanshyam and PW.7 Suresh, the first informant, it is apparent that they have made wholesome improvements in the earlier version wherein, neither any particular weapon was ascribed to the particular accused nor was any specific role assigned. He urged that the conviction of the accused appellants for the offence under Section 302 IPC with the aid of Section 34 IPC is totally unjustified. He further contended that as per the evidence of Dr. Sagir Ahmad (PW.9), when the medical jurist examined Shri Bhanwarlal on 09.11.2011 after he had received injuries in the incident, he did not notice any abnormality in his vital signs. There was no complaint of vomiting etc. He pointed out that as per the prosecution case, Shri Bhanwarlal was taken to and got admitted at the J.L.N. Medical College & Hospital, Ajmer but the treatment record was not exhibited during trial and hence, there is a significant missing link in the prosecution case regarding the condition in which, Shri Bhanwarlal was admitted at the Hospital and the treatment provided to him. Shri Acharya particularly referred to the admissions as appearing in the statement of Dr. Nandlal (PW.9), the medical jurist who conducted autopsy upon the dead body of the victim Bhanwarlal wherein the doctor admitted that no fracture was noticed on the skull of the deceased. Had the injury been inflicted with force, fracture would probably be caused. There is a procedure for removing hematoma. However, there was no hematoma inside the brain. Possibility of hematoma being caused by blood pressure could not be ruled out. (Downloaded on 26/11/2021 at 09:03:48 PM)
(6 of 10) [CRLAD-107/2019] There was no injury on the brain. Shri Acharya thus, submitted that even if it is assumed that the injuries were inflicted to the injured Bhanwarlal by the accused, then also, at best, the accused appellant Om Prakash can be held responsible for causing a simple blunt weapon injury on the head of the deceased. Since the accused Baduri was unarmed at the time of the incident and as no specific role is assigned to her, her conviction with the aid of Section 34 IPC is not sustainable. He therefore, urged that the appellants deserve to be acquitted by giving them benefit of doubt. His alternative submission was that the appellant Baduri is entitled to a complete acquittal whereas the conviction of the appellant Om Prakash deserves to be toned down from one punishable under Section 302 IPC to that under Section 304 Part II IPC with a suitable reduction in sentences.
Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by the appellants' counsel. He urged that there is a distinct allegation of the prosecution witnesses that the appellants herein and the accused Asuram who passed away during trial, surrounded the victim Shri Bhanwarlal after a trivial dispute and inflicted repeated blows on his head which is a vital body part. The injuries were caused with such force that they resulted into extensive hematoma leading to congestion of brain and caused the death of Shri Bhanwarlal. He thus, urged that the appreciation of the evidence as undertaken by the trial court while recording findings of guilt of the accused appellants is apposite and that the impugned judgment does not warrant interference of this Court in exercise of the appellate (Downloaded on 26/11/2021 at 09:03:48 PM) (7 of 10) [CRLAD-107/2019] jurisdiction. On these submissions, learned Public Prosecutor sought dismissal of the appeal and affirmation of the impugned judgment.
We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment and have minutely re-appreciated the evidence led by the prosecution.
The written report (Ex.P/7) was lodged by Suresh (PW.7) wherein omnibus allegation was made that owing to dispute overflow of water, the accused persons Ompraksh, Ashuram and Batudi trespassed into their house and assaulted his grandfather. It was alleged in the report that the accused persons were armed with sword, lathi as well as axe and that sword blow was inflicted on the head of the complainant's grandfather. However, the story was given turn during investigation where, the material witnesses viz. Manoharlal (PW.5), Ganpatram @ Ghanshyam (PW.6) and Suresh (PW.7) alleged that injuries on the head of Shri Bhanwarlal were inflicted by a lathi. None of the prosecution witnesses specifically alleged during investigation that Om Prakash was armed with a lathi or that he inflicted blows to the injured Bhanwarlal on the head. However, during trial, the witnesses improved their previous version and attributed the head injury to the accused Omprakash alleging that he wielded a lathi upon Shri Bhanwarlal. Thus, there is an apparent contradiction and lacuna in the evidence of the prosecution witnesses in this regard. As per the evidence of the Medical Officers PW.9 Dr. Sagir Ahmad and (Downloaded on 26/11/2021 at 09:03:48 PM) (8 of 10) [CRLAD-107/2019] PW.10 Dr. Nandlal, only two external wounds in the nature of lacerations were noticeable on the head of Shri Bhanwarlal. No bony injury was found underneath the external wounds. Even on postmortem, subdural hematoma was found on the surface of the brain. Dr. Nandlal (PW.10) admitted in his cross-examination that no damage was noticed on the brain of the deceased. Manifestly, thus, even if the version as deposed during trial by the prosecution witnesses who have made a drastic improvement from the allegations as made during investigation by imputing the specific blunt weapon injuries caused to Shri Bhanwarlal to the appellant Om Prakash is accepted for the sake of arguments, then also, it is clear that Om Prakash inflicted the lathi blows to the deceased Bhanwarlal in a dispute which arose after a trivial quarrel of flow of dirty water through a channel. The version as set out in the FIR and during the investigation statement of the witnesses is highly contradictory from their sworn testimony because during investigation, the prosecution witness Suresh (Statement -Ex.D/3) alleged that the head injury was caused to his grandfather by using a sword. The injuries were not inflicted with any significant force because the skull bone of the deceased Shri Bhanwarlal was found intact and no damage was noticed on the brain. As per Roznamcha report (Ex.D/4), accused Baduri also received an injury in this very incident. However, no injury report of accused Baduri was got prepared by the Investigating Officer.
In wake of the discussion made hereinabove, we are of the view that the prosecution case is full of exaggerations and improvements. As Baduri was not alleged to be armed during the incident which was triggered by a trivial dispute of overflow of (Downloaded on 26/11/2021 at 09:03:48 PM) (9 of 10) [CRLAD-107/2019] dirty water, manifestly her conviction as recorded by the trial court for the offence under Section 302 read with Section 34 IPC is totally unjustified. She cannot be held vicariously liable for the acts of Omprakash as there was no common intention to commit any offence. Even considering the exaggerated version of the prosecution eyewitness that the accused Om Prakash inflicted lathi blows to Shri Bhanwarlal to be true, apparently, these injuries were not inflicted by using any significant force and did not result into fracture of skull nor was any injury caused to the brain of the deceased. Manifestly, while inflicting these injuries, neither did the accused use any brutal force nor did he act in an excessive cruel manner and apparently, there was no intention to kill the deceased. Thus, the conviction of the accused Omprakash for the offence under Section 302 IPC is not justified and deserves to be toned down to one under Section 304 Part-II IPC for which, the accused appellant is sentenced to 6 years' rigorous imprisonment. In addition thereto, we impose a fine of Rs.10,000/- on the said appellant and in default of payment of fine, he shall further undergo two months' simple imprisonment. The impugned judgment dated 29.03.2019 passed by learned Addl. Sessions Judge No.1, Parbatsar, District Nagaur in Sessions Case No.11/11 (CIS No.102/14) is modified accordingly. The accused Baduri is on bail. Her bail bonds are discharged.
The appeal is partly allowed in these terms.
However, keeping in view the provisions of Section 437-A Cr.P.C., the accused appellant Baduri is directed to furnish a personal bond in the sum of Rs.15,000/- and a surety bond in the (Downloaded on 26/11/2021 at 09:03:48 PM) (10 of 10) [CRLAD-107/2019] like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court.
Record be returned to the trial court forthwith.
(SAMEER JAIN),J (SANDEEP MEHTA),J
Sudhir Asopa/-
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