Rajasthan High Court
Hariram vs State Of Rajasthan Through Pp on 26 August, 2021
Bench: Sandeep Mehta, Rameshwar Vyas
(1 of 10) [CRLA-71/2015]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 71/2015
Hariram S/o Jodhraj Meena, R/o Daulatpura, Police Station
Ayana, District Kota (Rural)
(At present in Central Jail, Kota)
----Appellant
Versus
State Of Rajasthan through PP
----Respondents
Connected With
D.B. Criminal Appeal No. 47/2015
Pradeep @ Mikki S/o Ram Gopal, R/o Choudhary Bhawan,
Kansua, Police Station Udyog Nagar, Kota (at present lodged in
the Central Jail, Kota)
----Appellant
Versus
State Of Rajasthan through PP
----Respondent
D.B. Criminal Appeal No. 70/2015
Brijesh Choudhary S/o Babu Lal, R/o Jalodi, Police Station
Taleda, District Bundi.
(Presently confined in Central Jail, Kota)
----Appellant
Versus
State Of Rajasthan through PP
----Respondent
D.B. Criminal Appeal No. 91/2015
Ajay Singh S/o Kanta Singh Rajput, R/o Bapu Nagar, Kansua
Chauraha, Near Radha Krishana Mandir, P.S. Udyog Nagar, Kota
(At present confined in Central Jail, Kota)
----Appellant
Versus
State Of Rajasthan Through PP
----Respondent
(Downloaded on 26/08/2021 at 09:42:05 PM)
(2 of 10) [CRLA-71/2015]
For Appellants : Mr. Rinesh Kumar Gupta
Mr. Ashvin Garg
Mr. Anil Yadav
Mr. Sunil Kumar Jain
For Respondent : Ms. Rekha Madnani, AGA
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE RAMESHWAR VYAS
Judgment
Date of Pronouncement : 26/08/2021
Judgment Reserved on : 19/08/2021
BY THE COURT : PER HON'BLE MEHTA, J.
These four appeals have been preferred by the
appellants herein for assailing the judgment dated 19.12.2014
passed by the learned Additional Sessions Judge No.5, Kota in
Sessions Case No.03/2011, whereby each of the appellants has
been convicted and sentenced as under:-
For the offence punishable under Section 147 IPC : To
undergo simple imprisonment of one year alongwith a fine of
Rs.2000/- and in default of payment of fine, to undergo additional
simple imprisonment of one month.
For the offence punishable under Section 302 read with
Section 149 IPC : To undergo life imprisonment alongwith a fine
of Rs.5000/- and in default of payment of fine, to undergo
additional simple imprisonment of three months.
The sentences were ordered to run concurrently.
(3 of 10) [CRLA-71/2015]
The appellants have suffered the custodial period as
follows :-
Name of the appellant Custodial period suffered
Hariram 7 years 7 days as on 07.08.2021
Pradeep 6 years 8 months 18 days as on 14.08.2021
Brijesh 6 years 11 months 2 days as on 14.08.2021
Ajay Singh 6 years 10 months 1 day as on 14.08.2021
The appeals being connected are being decided
together by this common judgment.
Briefly stated, facts relevant and essential for disposal
of the appeal are noted hereinbelow :-
Pramod Gautam (P.W.6) lodged a written report
(Ex.P/15) to the SHO, Police Station Mahaveer Naagar, Kota on
23.01.2009 at 05.10 p.m. alleging inter alia that on the same day
between 02.30 p.m. and 03.00 p.m., he was standing at Samrat
Cross Roads. His brother Pradeep Gautam, Sunny, Sonu and
Deepak Gautam were having Kachoris at nearby Namkeen shop.
They got into a quarrel with Kuldeep and Brijesh over a trivial
matter. Brijesh slapped Sunny. After this incident, all went back
to their respective homes. At about 04.00 p.m.-04.30 p.m., his
brother Pradeep Gautam, Sonu and Deepak had gone to Samrat
Cross Roads for a stroll. Deepak came running towards the
informant and told him that Pradeep was being assaulted by
Kuldeep, Brijesh, Hariram and 10-12 other boys by baseball bats
and sticks etc. The informant immediately rushed to the place of
incident and saw that Pradeep was being assaulted by Kuldeep,
Brijesh, Hariram and 10-12 other boys with baseball bats in front
of the Saras Booth. The informant, Deepak, Sonu and Sunny
(4 of 10) [CRLA-71/2015]
intervened in on attempt to save Pradeep from the assailants who
escaped on their motorcycles. Deepak also received injuries in
this incident. Pradeep became unconscious because of the grave
injuries suffered in the incident and thus, 108 ambulance was
called and he was rushed to Apollo Modi Hospital, where the
doctors declared Pradeep to be dead. On the basis of this report,
an FIR No.36/2009 came to be registered at the Police Station
Mahaveer Nagar, Kota for the offences punishable under Sections
143, 148, 149 and 302 IPC and investigation was commenced.
The appellants were arrested and the usual recoveries were
effected from them. The dead body of Pradeep was subjected to
autopsy at the hands of Dr. Ashok Moondra (P.W.2) at the MBS
Hospital, Kota, who noticed the following injuries on the body of
the deceased :-
1. Lacerated wound 2 cm x 1 cm x bone deep on the right
parietal region.
2. Bruise 15 cm x 2 cm transverse on the chest.
3. Bruise 10 cm x 2 cm little below the injury No.2.
4. Bruise 10 cm x 2 cm on the chest below the injury No.3.
5. Bruise 10 cm x 3 on the right side of abdomen.
In addition thereto, two superficial abrasions were noticed on the
right leg and on the right cheek.
On dissection of the skull, sub-dural haemorrhage was seen
underneath the injury No.1, but no internal damage was noticed
on the skull or the brain. When chest was opened haemorrhage
was noticed; 4th right rib was fractured and blood was collected
underneath the injury. The right lung was ruptured and 500 ml. of
blood and blood clots were collected below the site of the injury.
(5 of 10) [CRLA-71/2015]
The cause of death was found to be injury to right lung, which was
opined to be sufficient in the ordinary course of nature to cause
death. The postmortem report was proved as Ex.P/5.
After investigation, a charge-sheet came to be filed
against the appellants for the offences punishable under Sections
147, 148, 149, 302 and 323 IPC. The case was committed and
transferred to the court of Additional Sessions Judge No.5, Kota
for trial, where charges were framed against the appellants for the
offences punishable under Section 147 and 302 in the alternative
302 read with Section 149 IPC. They pleaded not guilty and
claimed trial. The prosecution examined as many as 17 witnesses
and exhibited 28 documents in support of its case. Upon being
questioned under Section 313 CrPC, the accused denied the
prosecution allegations, but did not choose to lead any evidence in
defence. After appreciating the arguments advanced by learned
Defence Counsel and learned Public Prosecutor and analysing the
evidence on record, the trial court proceeded to convict and
sentence the appellants as above. Hence, these appeals.
Learned counsel representing the appellants frankly
conceded that the prosecution case regarding participation of the
accused appellants in the incident is well-proved from the
testimony of the first informant Pramod Gautam (P.W.6) and the
eye witnesses Deepak (P.W.8) and Brijesh Kumar (P.W.1).
However, the contention of the learned counsel for the appellants
was that even if the highest allegations as set out in the testimony
of the material prosecution witnesses are accepted to be true on
the face of the record, the offence punishable under Section 302
IPC cannot be held proved out against the accused persons. It
(6 of 10) [CRLA-71/2015]
was contended that the incident took place at the spur of the
moment without any pre-meditation. The head injury noticed on
the body of the deceased was found to be simple in nature. The
injury on the chest caused by a blunt weapon led to the fracture of
rib causing rupture of lung and proved fatal. It was, thus,
contended that the accused persons neither had the intention nor
the knowledge that causing such injury to the deceased could
result into his death. It was further urged that the appellants do
not have criminal antecedents. They are young students and have
suffered imprisonment of terms varying from 6 years to 7 years
and thus, the conviction of the appellants should be altered either
to Section 325 IPC or to Section 304 Part II IPC and they should
be released on the sentences already undergone by them. In
support of their contention, learned counsel for the appellants
placed reliance on the decision of the Hon'ble Supreme Court in
the case of Khuman Singh & Ors. Vs. State of Madhya
Pradesh [AIR 2005 SC 1281]. With these submissions, learned
counsel for the appellants prayed that the appeals may be partly
accepted as above.
Per contra, learned Public Prosecutor vehemently and
fervently opposed the submissions advanced by the appellants'
counsel. She contended that the appellants and their companions
(who could not be identified) formed an unlawful assembly and
brutally assaulted the deceased Pradeep Gautam without any
rhyme or reason and inflicted a forceful injury on the chest of the
deceased by a heavy implement i.e. a baseball bat, causing
fracture of the rib and as a result, the lung was ruptured leading
to instantaneous death. Thus, the learned Public Prosecutor urged
(7 of 10) [CRLA-71/2015]
that the conviction of the appellants as recorded by the trial court
does not warrant any interference by this court in these appeals.
She, thus, implored the court to reject the appeals in toto.
We have given our thoughtful consideration to the
submissions advanced at bar and have gone through the material
available on record.
Learned counsel representing the appellants have fairly
conceded that the prosecution has proved participation of the
accused in the incident beyond all manner of doubt from the
evidence of the eye-witnesses referred to supra. Their argument
was limited to the aspect that the incident took place on the spur
of the moment without any pre-meditation and that the accused
did not act in a cruel manner. They were young boys at the time
of the incident. The incident erupted all of a sudden following the
quarrel which took place in the morning. The accused could not
have comprehended by any stretch of imagination that a blow of
blunt weapon, landed on the chest of the victim could prove fatal.
Thus, the accused neither had any intention nor the knowledge
that inflicting such injury could lead to the death of the victim.
Their submission was limited to the nature of offence.
After appreciating the evidence of the eye-witnesses
Deepak (P.W.8) and Brijesh Kumar (P.W.1), we find that they have
portrayed the incident in two parts. In the first part, a trivial
verbal altercation took place between the parties, wherein accused
Brijesh gave a slap to Sunny. In the second part, the deceased
and his two companions Sonu and Deepak had gone to the same
place where the incident of morning happened, and there it is
alleged that Kuldeep, Brijesh, Hariram and 10-12 other boys came
(8 of 10) [CRLA-71/2015]
around and all these assailants, who were armed with baseball
bats and sticks etc. launched an indiscriminate assault on the
members of the complainant party. However, the allegation that
nearly 15 persons armed with baseball bats launched an
indiscriminate assault on the members of the complainant party is
not corroborated and is rather contradicted by the medical
evidence because Dr. Ashok Moondra (P.W.2), after conducting
postmortem, took note of presence of only 7 injuries on the
person of the deceased, of which 2 were superficial abrasions.
The head injury was found to be skin deep and did not cause any
damage to the internal organs. Three injuries were noticed on the
thoracic region, one of which led to the fracture of the4 th right rib,
which in turn, perforated the right lung causing bleeding and
ultimately, the victim expired as a result thereof. In these
circumstances, we are of the view that the accused can not be
clothed with either the intention or the knowledge that by causing
such injury on the chest of the victim, they could cause his death.
In the cases of (i) Kashi Ram & Ors. Vs. State of Madhya
Pradesh (AIR 2001 SC 2902); (ii) Dev Raj & Ors. Vs. State
of Himachal Pradesh (AIR 1994 SC 523) and (iii) Tara
Chand & Ors. Vs. State of Haryana (AIR 1971 SC 1891),
Hon'ble Supreme Court examined almost identical facts and
circumstances and held that the offence attributed to the accused
would not be one punishable under Section 302 IPC, but rather
that under Section 304 Part II IPC.
In wake of the discussion made hereinabove, we are of
the view that the conviction of the accused appellants deserves to
be toned down from the offence punishable Section 302 IPC read
(9 of 10) [CRLA-71/2015]
with Section 149 IPC to one under Section 304 Part II IPC read
with Section 149 IPC.
Accordingly, the impugned judgment dated 19.12.2014
passed by the learned Additional Sessions Judge No.5, Kota in
Sessions Case No.03/2011 is modified in the terms that conviction
of the appellants is altered from Section 302 read with Section
149 IPC to Section 304 Part II read with Section 149 IPC.
However, their conviction and sentence awarded for the offence
under Section 147 IPC is affirmed. For the offence under Section
304 Part II read with Section 149 IPC, the sentence awarded to
the appellants, is reduced to the period already undergone by
them as mentioned above. In addition thereto, we hereby impose
a fine of Rs.1,00,000/- each upon each appellant. In default of
payment of fine, they shall further undergo simple imprisonment
of six months. The fine upon being deposited, shall be paid to the
family members of the victim by way of compensation under
Section 357 CrPC. We further direct that the District Legal
Services Authority, Kota shall initiate proceedings for awarding
compensation to the family members of the deceased under the
Victim Compensation Scheme.
However, keeping in view the provisions of Section 437-A
Cr.P.C., each of the appellants is directed to furnish a personal
bond in the sum of Rs.15,000/- and a surety bond in the 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 appellants shall appear before the Supreme
Court.
(10 of 10) [CRLA-71/2015]
The appeals are partly allowed in these terms.
The record be returned back to the trial court forthwith.
(RAMESHWAR VYAS),J (SANDEEP MEHTA),J
Pramod/Devesh/
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