Darga Ram vs State
2021 Latest Caselaw 8189 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                D.B. Criminal Appeal No. 556/2016

Darga Ram S/o Vaga Ji, by caste Heeragar, aged 35 years, R/o
Village Marol, P.S. Revdar, District Sirohi (Raj)
[Presently lodged in District Jail, Sirohi]
                                                                        ----Appellant
                                    Versus
State of Rajasthan
                                                                      ----Respondent


For Appellant(s)          :     Mr. Pradeep Shah
For Respondent(s)         :     Mr. Anil Joshi, P.P.



           HON'BLE MR. JUSTICE SANDEEP MEHTA
      HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

                                 Judgment

Date of pronouncement : 25/03/2021

Judgment reserved on :            19/02/2021

BY THE COURT : PER HON'BLE MEHTA, J.

The appellant Darga Ram has been convicted and

sentenced as below vide the judgment dated 03.06.2016 passed

by the learned Sessions Judge, Sirohi in Sessions Case

No.30/2012 :-

Offence for which convicted               Sentence awarded
Section 302 IPC                           Life imprisonment alongwith a
                                          fine of Rs.25,000/-     and in
                                          default of payment of fine,
                                          further to undergo rigorous
                                          imprisonment of six months.
Section 504 IPC                           Four      months'     rigorous
                                          imprisonment alongwith a fine
                                          of Rs.2,000/- and in default of
                                          payment of fine, further to
                                          undergo rigorous imprisonment
                                          of one month.



                                            (2 of 16)                [CRLA-556/2016]

Being aggrieved of his conviction and the sentences

awarded to him, the appellant has preferred the instant appeal

under Section 374 (2) CrPC.

Succinctly stated facts of the case are as below:-

The Parcha Bayan (Ex.P/2) of Smt. Laxmi Devi (P.W.2)

was recorded by the SHO, Police Station Revdar, District Sirohi on

12.09.2012 at the Lions General Hospital, Mehsana, wherein, she

stated that she was a resident of village Marol, District Sirohi. Two

days prior, i.e. on 10.09.2012, at about 1 o'clock in the afternoon,

she and her daughter Rakma @ Kooka had gone to her brother-in-

law Jaisa Ji's house. A while later, her nephew Vachna S/o Babu

came and informed her that Darga Ram S/o Vaga Ji had verbally

abused Hansa and restrained him on his way home and then he

had assaulted him with a lathi causing him head injury. The

informant and her daughter rushed home and saw her husband

Hansa lying unconscious in the courtyard outside their house and

was bleeding from the head injury. The incident had been

witnessed by her brothers-in-law Chuna Ram (PW.3) and Babu

Ram (PW.5). Her husband was taken to the Government Hospital,

Revdar, from where, the Medical Officer referred him to a higher

centre for treatment, on which, he was taken to the Mehsana

hospital. Hansa Ram was admitted to the hospital but was unable

to speak.

On the basis of the aforesaid report, an FIR No.85/2012

came to be registered at the Police Station Revdar, District Sirohi,

for the offences under Sections 341, 323 and 504 IPC.

Investigation was undertaken during which, it came to the light

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that Hansa did not regain consciousness and surgery was advised

as a life protective measure, but his family members refused to

give permission for operation and got him discharged against the

medical advice. Hansa Ram passed away on 22.09.2012. The

autopsy of the dead body was carried out at the Government

Hospital, Revdar on 22.09.2012 by Dr. Surendra Kumar Jain

(PW.18), who issued a postmortem report (Ex.P/28), opining that

the cause of the death of Hansa Ram was coma due to head

injury. The appellant was arrested and after conducting

investigation, a charge-sheet was filed against him in the Court of

the Magistrate concerned for the offences under Sections 302, 341

and 504 IPC. As the offence under Section 302 IPC was

exclusively triable by the court of Sessions, the case was

committed to the Court of Sessions Judge, Sirohi, where charges

were framed against the accused-appellant for the above offences.

He pleaded not guilty and claimed trial. The prosecution

examined as many as 18 witnesses to prove its case. Upon being

questioned under Section 313 Cr.P.C. and when confronted with

the circumstances appearing in the prosecution evidence, the

accused denied the same and stated that when he reached home,

he saw that the victim Hansa Ram had caught hold of his wife. He

got enraged on witnessing this scene and therefore, he picked up

a stick lying at the spot and hit the deceased Hansa Ram in a fit of

rage. Two witnesses namely Jamna Devi (D.W.1) and Manju

Kumari (D.W.2) were examined in defence.

After hearing arguments advanced by the Public

Prosecutor and the defence counsel and appreciating the evidence

(4 of 16) [CRLA-556/2016]

available on record, the trial court proceeded to convict and

sentence the appellant as above. Hence, this appeal.

Mr. Pradeep Shah, learned counsel representing the

appellant, vehemently and fervently contended that the entire

prosecution case is false and fabricated. The F.I.R. was lodged

after undue delay of two days and there is no tangible explanation

for the delay in lodging of the FIR. He urged that, as a matter of

fact, the deceased came to the house of the appellant and was

trying to molest the appellant's wife Smt. Jamna Devi.

Coincidentally, the appellant reached home, saw his wife being

harassed by the deceased and acting under grave and sudden

provocation, he picked up a stick lying nearby and gave blows

thereof to the deceased. Mr. Shah further urged that the injuries

received by Hansa in the incident were not life endangering.

Hansa Ram was taken to Mehsana for treatment and the doctors

at Mehsana hospital advised that the injured should undergo

surgery to avoid complications, but his family members refused to

give consent to operate him and got him discharged against

medical advice and due to this reason, complications set in which

proved fatal. He urged that as a matter of fact, the accused acted

in the exercise of right of private defence of his wife while

inflicting the injuries to the deceased and therefore, the offence, if

any, would not travel beyond Section 325 IPC. His alternative

submission was that, even if the prosecution case is accepted to

be true on the face of the record, manifestly, the accused

appellant inflicted the injuries to the deceased after an

unanticipated quarrel and while acting under grave and sudden

(5 of 16) [CRLA-556/2016]

provocation and thus, the offence, if any, would not travel beyond

Section 304 Part II IPC. On these submissions, Mr. Shah has

sought acceptance of the appeal.

Per contra, learned Public Prosecutor vehemently and

fervently opposed the submissions advanced by the appellant's

counsel. He urged that the evidence of the eye-witnesses Chuna

Ram (P.W.3) and Babu Ram (P.W.5) is absolutely reliable and

sufficient to conclude the guilt of the appellant. Both the

witnesses have given cogent evidence by stating that Hansa Ram

was proceeding towards his house when the accused appellant

came across and started hurling abuses at him without any

justification whatsoever. When Hansa Ram requested him to

refrain from acting in this offensive manner, the accused rushed to

his house, picked up a wooden stick, came back and delivered

repeated blows on the head of Hansa Ram, which proved fatal.

Learned Public Prosecutor urged that, as the accused-appellant

inflicted repeated blows with a thick wooden stick on the head of

the unarmed victim, the intention to commit murder can very well

be attributed to the appellant. He urged that merely because the

Medical Officer stated that the life of the deceased could have

been saved by surgical procedure, that by itself cannot be a

reason to tone down the offence from Section 302 IPC to a lower

degree because the injuries inflicted by the accused caused deep

damage in the brain of Hansa Ram and there was hardly any

possibility of his survival even if the surgical procedure was carried

out. Regarding the defence evidence, the contention of the

learned Public Prosecutor was that the version set out in the

(6 of 16) [CRLA-556/2016]

evidence of defence witnesses is totally unbelievable and

concocted because no complaint whatsoever was made by Smt.

Jamna Devi (D.W.1) regarding she having been molested by the

victim and it is for the first time, while being examined during

defence evidence, that at a highly belated stage, this fictitious

theory was propounded. He thus urged that the appeal lacks

merit and should be dismissed and the impugned judgment be

affirmed.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

impugned judgment. We have minutely re-appreciated the

evidence led by the parties.

It is an admitted position that the appellant and the

deceased are closely related to each other. The prosecution case

hinges primarily on the testimony of Chuna Ram (P.W.3) and Babu

Ram (P.W.5). Both the witnesses gave similar evidence alleging

that they were at their home on the day of the incident. Darga

Ram was sitting at his house. The incident took place at about 2

o'clock in the afternoon. Hansa Ram came back to his house for

having lunch. At that time Darga Ram started verbally abusing

Hansa Ram. Chuna Ram (P.W.3) pleaded with Darga Ram to

refrain from having this offensive attitude, on which Darga Ram

threatened him that he would be the next, if he intervened.

Darga Ram then went inside his house, picked up a wooden side

stick of a cot, came back and gave successive blows thereof on

the shoulder and the head of Hansa Ram, who was badly hurt and

fell down at the spot. Soon thereafter, Hansa Ram's wife and

(7 of 16) [CRLA-556/2016]

daughter arrived there. Hansa Ram was boarded onto an auto

rickshaw and was taken to Revdar Hospital and then they went to

the Police Station Revdar. The doctor referred Hansa Ram to

Mehsana. A suggestion was given to both the witnesses regarding

the incident having taken place in the house of Darga Ram, which

they denied. The witnesses admitted that they made no effort

whatsoever to snatch the stick from Darga Ram, explaining that if

they had tried to do so, they too would have been beaten up by

him. The witnesses denied the suggestion that Hansa Ram had

entered the house of Darga Ram and was trying to molest his wife

and that the incident took place because of this reason. On

overall appreciation of the evidence of these witnesses, it is clear

that neither of them stated that the appellant had any previous

enmity with the deceased nor did they clarify that there was any

immediate cause preceding the incident. The FIR came to be

lodged after two days of the incident, inspite of the fact that the

witness Chuna Ram (P.W.3) claimed that they went to the Police

Station Revdar on the very day of the assault. From the evidence

of these two eye-witnesses, it is clear that the appellant was

casually sitting at his house having lunch and the deceased had

returned from his field for eating food. Neither of the two eye-

witnesses stated that any interaction took place between the

deceased and the accused, which could have precipitated the

incident. In this background, the evidence of the two eye-

witnesses has to be appreciated with a reservation, considering

the fact that they did not make any attempt whatsoever to lodge a

report at the police station promptly and that they have offered no

explanation whatsoever as to why the quarrel broke out. It is

(8 of 16) [CRLA-556/2016]

further relevant to mention here that both the witnesses tried to

state that the incident took place inside the house of the

deceased, whereas it is manifested from the evidence of the

Investigating Officer as well as the site plan (Ex.P/1), that the

incident took place in an open space between the houses of the

accused, deceased and the witnesses. In this background, we

have reason to doubt that the eye-witnesses have tried to hide the

genesis of the occurrence.

Having appreciated the evidence of the two eye-

witnesses, we now proceed to discuss the medical evidence in

light of the submissions of Mr. Shah.

Hansa Ram after having received the injuries in the

incident dated 10.09.2012 was immediately taken to the

Community Health Center, Revdar, where he was examined by Dr.

Sumer Singh Bhati (P.W.11), who prepared the injury report (Ex.P/

10) while taking note of the fact that three injuries were visible on

the person of Hansa Ram, viz.

(1) Lacerated wound 3 in. x 1/2 in. scalp deep on the parietal region.

(2) Lacerated wound 1 in. x 1/2 in. scalp deep behind left ear.

(3) Swelling 2 in. x 2 in. on the left knee.

All the three injuries were caused by blunt weapon and the opinion

regarding the nature of injuries was kept reserved for CT Scan/X-

Ray Examination. The injured was referred to higher centre for

further management. The Medical Jurist also stated that the SHO,

Police Station Revdar forwarded a letter dated 18.09.2012

(9 of 16) [CRLA-556/2016]

(Ex.P/11) for seeking his opinion regarding the nature of injuries.

He marked his opinion on the above-mentioned letter (Ex.P/11)

observing that the injuries sustained by the deceased were

sufficient to cause death. In his cross-examination, the witness

refuted the suggestion that there existed a possibility of the

injured being saved if proper treatment was given to him. He

admitted that it was not mentioned in the outdoor patient slip

(Ex.P/12) that the injured was unconscious when he was brought

to the hospital. On appreciating evidence of this witness, it can

easily be inferred that his opinion regarding the nature of injuries

is purely conjectural because he did not have the opportunity to

see the investigation reports, viz. CT Scan/X-Ray etc. nor did he

treat the injured.

As has been mentioned above, Hansa Ram was referred

to a higher center from Revdar. He was taken to Mehsana and

was admitted to the Champa Hospital. Dr. Mahesh Trivedi

(P.W.17), in-charge of the hospital appeared in the witness box

and stated that Hansa Ram was admitted to his hospital at about

08.00 p.m. on 10.09.2012. He was unconscious and therefore,

was unable to speak. Left side of his body had been paralyzed. A

stitched wound ad measuring 5 cm. was visible on the left parietal

area of the head. CT Scan of Hansa Ram was conducted and it

was noticed that a communited depressed fracture was existing on

the left temporoparietal bones. Temporoparietal haemorrhage

with associated haematoma was also noticed. The family

members of the injured were advised that the condition of the

patient was serious and that surgery had to be undertaken for

(10 of 16) [CRLA-556/2016]

saving his life. However, the family members refused to give

consent for the operation and thus, the patient was treated

conservatively. Considering his serious condition, the patient was

referred to the Lions Hospital, Mehsana on 12.09.2012 at 01.45

p.m. However, the patient's relatives brought him back to his

hospital on the very same night. On 21.09.2012, the patient's

relatives got him discharged from the hospital and thus, the

remark "Discharged Against Medical Advice" was appended on the

discharge summary (Ex.P/29 and Ex.P/30). The officers of the

Police Station Revdar sought opinion from the witness regarding

the nature of injuries of Hansa Ram, to which, he responded vide

certificate (Ex.P/14) mentioning that the injuries were serious and

life threatening. In cross-examination, the witness admitted that

there were slender chances of the patient's survival, if he was

operated on. He advised the family members of the patient not to

get him discharged from the hospital and to continue his

treatment, but they did not pay heed to his advice.

Dr. Surendra Kumar Jain (P.W.18) carried out the

postmortem of the dead body of Hansa Ram and prepared a

report (Ex.P/28) thereof at the Government Hospital Revdar on

22.09.2012. On opening the skull, he noticed an extradural

Haematoma on the temporal parietal area, underneath which

there was a depressed fracture. The doctor opined that the cause

of death of Hansa Ram was coma as a result of head injury. The

doctor expressed that only one injury had been noticed on the

head of the deceased when the autopsy was undertaken.

(11 of 16) [CRLA-556/2016]

At this juncture, it would be relevant to mention here

that Laxmi Devi (P.W.2), wife of the deceased, stated in her

examination-in-chief that her husband remained admitted in the

Mehsana hospital for about 12 days whereafter, he was brought

back home, where he passed away. Nonetheless, she did not

state anything about the condition of Hansa Ram after he was

brought back from the hospital. In cross-examination, Laxmi Devi

stated that the doctor informed them that there was no guarantee

of the deceased surviving despite the surgical procedure and that

is why, they did not consent for the same. After she received

information regarding the incident, she rushed home and saw her

husband lying down on the ground. She did not ask anyone about

the incident and immediately took her husband to the hospital.

The investigation of the case was undertaken by

Rajendra Singh (P.W.16), SHO, Police Station Revdar. He stated

that on 10.09.2012, he received an information from the CHC,

Revdar at about 02.50 p.m., that a person had been hurt in an

assault and had been brought to the hospital. He immediately

deputed Head Constable Bhanwar Singh to proceed to the hospital

after making an entry in the Roznamcha (Ex.P/22). In the

Roznamcha report No.299, which the Constable made after

coming back from the hospital, it was noted that the family

members were asked to give a report, but they stated that they

would first get the injured treated and then the report would be

submitted. It was also noted that the injured was not in a position

to give a statement. Efforts were made to get the statement of

Hansa Ram recorded at the Mehsana hospital, but he was not in a

(12 of 16) [CRLA-556/2016]

position to do so. The Parcha Bayan (Ex.P/2) of Laxmi Devi, wife

of Hansa Ram, was recorded by Head Constable Bhanwar Singh at

Lions General Hospital, Mehsana on 12.09.2012 and on the basis

thereof, the FIR No.85/2012 was registered. After receiving

medical opinion regarding the nature of injuries, offence under

Section 307 IPC was added to the case and the accused was

arrested. The blood stained "Lath" allegedly used to assault the

deceased was recovered vide memo Ex.P/5 on the basis of the

information supplied by the accused under Section 27 of the

Evidence Act (Ex.P/26). The treatment papers of Hansa Ram were

collected. The postmortem report (Ex.P/28) was taken on record

and thereafter, charge-sheet was filed against Darga Ram for the

offences under Sections 302, 341 and 504 IPC. In cross-

examination, the witness refuted the defence suggestion that

Hansa Ram was initially brought to the Police Station Revdar. He

feigned ignorance as to whether any opinion was taken from the

hospital regarding the condition of Hansa Ram to give statement

on 10.09.2012. He also denied the suggestion that during

investigation, he collected evidence indicating that Hansa Ram had

entered the house of Darga Ram on the day of the incident and

tried to molest his wife and that the incident took place because of

this indecent behaviour of Hansa Ram.

On overall appreciation of the evidence of the material

witnesses referred to supra, we are of the definite opinion that the

delay in lodging the First Information Report creates a doubt on

the truthfulness of the prosecution. It may be stated here that as

per the Roznamcha entry No.299 (Ex.P/22), the officers of the

(13 of 16) [CRLA-556/2016]

Police Station Revdar reached the CHC, Revdar on receiving

information that Hansa Ram had been brought there for

treatment. The reluctance of the family members in giving a

report right then is explainable because they were anxious to get

the injured treated on a priority basis, but there was no reason as

to why a succinct statement could not have been given to the

Constable Bhanwar Singh regarding the manner in which the

incident took place. As per Laxmi Devi (P.W.2), her husband was

taken to Mehsana in a Bolero vehicle and Pushpa, Sita, Tara Ji and

she herself accompanied Hansa Ram in the vehicle. The eye-

witness Chuna Ram (P.W.3), real brother of the deceased, and

Babu Ram (P.W.5), his cousin brother, were at the village and

could have proceeded to the Police Station Revdar for lodging the

report. However, both these witnesses did not make any such

attempt whatsoever. These glaring facts make the delay in

lodging of the report an important factor while appreciating the

evidence of the prosecution witnesses more particularly, while

considering the defence theory. A lurking doubt is created that

the prosecution witnesses were trying to hide the truth. The

defence theory cannot be totally discarded simply because the

defence witnesses did not lodge a report of the molestation

incident at the police station concerned. It may be stated here

that as Hansa Ram had received serious injuries in the incident, it

is unlikely that the report of the relatives of the accused would

have been accepted by the police officers. Upon an overall

appreciation of the material available on record, we are of the

view that the prosecution is guilty of hiding the true genesis of the

occurrence.

(14 of 16) [CRLA-556/2016]

For the sake of repetition, it may be mentioned here

that the accused and the deceased had no animosity whatsoever,

which could have suddenly precipitated the incident, in which the

accused became enraged to such an extent that he gave repeated

blows with a stick of a cot to the victim. Apparently, thus, we can

presume that the incident must have been preceded by some

untoward incident between the victim and the accused, which led

to a verbal altercation followed by the actual assault.

As per the evidence of the Medical Officer Dr. Surendra

Kumar Jain (P.W.18), who conducted autopsy on the dead body of

Hansa Ram, noticed only one grievous injury on the head, which

proved fatal. It is also an admitted position that the family

members of Hansa Ram did not consent for his treatment as

opined by Dr. Mahesh Trivedi (P.W.17) and got him discharged

against the medical advice.

Defence witnesses Jamna Devi (D.W.1) and Manju

Kumari (D.W.2), wife and daughter of the accused respectively,

gave evidence to the effect that Hansa Ram entered their house

when both the ladies were all alone. Jamna Devi was cooking

food. Hansa Ram asked the whereabouts of Darga Ram. On

coming to know that he was not in the house, Hansa Ram caught

hold of Jamna Devi and was trying to outrage her modesty, at

which point, Darga Ram came around. He raised his voice and

asked the accused to leave his wife. Being enraged, as any

normal human being would have been, by the misdemeanor of

Hansa Ram, the accused appellant picked up a stick lying at the

scene of occurrence and inflicted blows thereof to Hansa Ram.

(15 of 16) [CRLA-556/2016]

Thus, without any doubt, the accused while inflicting injuries to

Hansa Ram, was acting in the spur of the moment and the attack

was preceded by grave and sudden provocation caused by the act

of the deceased himself. Thus, the offence committed by the

accused cannot be covered by the definition of murder.

In this background, we are of the opinion that the

accused-appellant had no intention to commit the murder, rather

he appears to have acted out of grave and sudden provocation

caused by the unsavory advances of the deceased towards his

wife.

In wake of the facts noted and the discussion made

hereinabove, we are of the opinion that the accused while

inflicting injuries to the deceased Hansa Ram cannot be clothed

with the intention of causing such bodily injury which was likely to

cause death. The act of the accused would definitely be governed

by the exception firstly to Section 300 IPC. Thus, the conviction

of the accused-appellant deserves to be toned down from one

under Section 302 IPC to Section 304 Part II IPC. For reaching

this conclusion, we are guided by the observations made by the

Hon'ble Supreme Court in the case of Stalin Vs. State

represented by the Inspector of Police [Criminal Appeal

No.577/2020 decided on 09.09.2020].

Accordingly, we modify the impugned judgment dated

03.06.2016 passed by the learned Sessions Judge, Sirohi in

Sessions Case No.30/2012, in the terms that the conviction of the

appellant under Section 302 IPC is set aside and instead he is

convicted for the offence under Section 304 Part II IPC and on this

(16 of 16) [CRLA-556/2016]

count, he is sentenced to undergo 8 years' rigorous imprisonment

and to pay a fine of Rs.5,000/- and in default of payment thereof,

he shall further undergo six months' simple imprisonment. The

appeal is partly allowed in these terms.

                                   (DEVENDRA KACHHAWAHA),J                                  (SANDEEP MEHTA),J



                                    Pramod/-









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