Om Prakash vs State
2021 Latest Caselaw 17791 Raj

     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:-

                                           (2 of 10)                 [CRLAD-107/2019]


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:-

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(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

(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

(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.

(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

(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

(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

(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

(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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