Ram Kumar And Ors vs State
2022 Latest Caselaw 9566 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 267/1992

1. Prabhudayal S/o Ram Kumar

2. Amar Singh S/o Ram Kumar by caste Kalal, R/o Baaya Tehsil Taranagar, Distt. Churu

----Appellant Versus State of Rajasthan

----Respondent

For Appellant(s) : Mr. D.S. Gharsana with Mr. Suresh Nehra For Respondent(s) : Mr. Anil Joshi, GA-cum-AAG Mr. A.R. Choudhary, P.P.

         HON'BLE MR. JUSTICE MANOJ KUMAR GARG

                                 Judgment

Order Reserved on :                  19/07/2022
Date of pronouncement:                22/07/2022

Instant criminal appeal under Section 374(2) Cr.P.C. has

been filed against the judgment and order dated 31.07.1992

passed by learned Additional District and Sessions Judge, Churu

(hereinafter referred to as 'the trial Court') in Sessions Case No.

22/1992(21/1988), whereby the trial Court has convicted and

sentenced the appellants as under :-

S.No.   Name              of Offence               Punishment
        accused
1.      Prabhudayal            304-II IPC          Five    years'  rigorous
                                                   imprisonment and fine of
                                                   Rs.200/-, in default of
                                                   fine to undergo one
                                                   month R.I
                               325/34 IPC          Two           Year's    rigorous



                                        (2 of 9)                 [CRLA-267/1992]


                                                  imprisonment and fine of
                                                  Rs. 200/-, in default of
                                                  fine, to undergo one
                                                  month R.I
                             323/34 IPC           One    month    rigorous
                                                  imprisonment and fine of
                                                  Rs. 100/-, in default of
                                                  payment    of  fine   to
                                                  undergone seven days R.I
2.        Amar Singh         304 II IPC           Five    years'  rigorous
                                                  imprisonment and fine of
                                                  Rs.200/-, in default of
                                                  fine to undergo one
                                                  month R.I
                             325 IPC              Two     Year's  rigorous
                                                  imprisonment and fine of
                                                  Rs. 200/-, in default of
                                                  fine, to undergo one
                                                  month R.I
                             323/34 IPC           One    month    rigorous
                                                  imprisonment and fine of
                                                  Rs. 100/-, in default of
                                                  payment    of  fine   to
                                                  undergone seven days R.I

The concise facts of the case are that a First Information

Report was registered on the basis of oral information of

complainant Sant lal to the effect that his water tank and that of

Ram kumar is situated at a distance of 200 pavandas from the

village. It is alleged that the accused persons had raised some

illegal constructions in the catchment area. When the complainant

went on the post the accused persons threatened him. In the

evening when the complainant alongwith his father Radhakishan

and uncle Mahaveer and son Suresh went to the spot, the accused

persons who were armed with lathi attacked his father

Radhakishan. Suresh also sustained injuries on his hand.

On the basis of aforesaid report, FIR was registered about

commission of offences punishable under Sections 307, 323, 34

IPC. During investigation, the injured Radhakishan succumbed to

(3 of 9) [CRLA-267/1992]

his injuries. After due investigation, police filed charge sheet

against accused-persons for offence under Section 302, 323, 325

IPC. The case was transferred to the court of Addl. District and

Sessions Judge, Churu where the charges of the case were framed

for offence under Section 302, 325/34, 323/34 IPC against

accused Ram Kumar, for offence under Section 302/34, 325/34

and 323/34 IPC against accused Amar Singh and for offence under

Sections 302/34, 325 and 323/34 IPC against accused

Prabhudayal. The appellants denied the charges and claimed trial.

During the course of trial, the prosecution examined 12

witnesses and various documents were also exhibited. Thereafter,

statement of appellants under section 313 Cr.P.C was recorded.

No witness was examined on the defence side.

After scrutiny of the material on record and evidence

produced by the prosecution as well as statement of accused

under Section 313 Cr.P.C., learned trial Court vide judgment dated

31.07.1992 convicted and sentenced the appellants as stated

hereinabove.

Being aggrieved with the judgment and order passed by the

Trial Court, the accused-appellants have preferred this criminal

appeal before this Court.

Learned counsel for the accused-appellants contended that

the incident relates back to year 1988 and after this occurrence,

the complainant party murdered the accused appellant Ram

Kumar and a cross FIR was also registered against the

complainant party. It is argued that a specific allegation has been

made by the injured and other witnesses that only accused Ram

kumar inflicted head injury by lathi to the deceased. As per

postmoretem report also and statement of PW/4 Dr. Sahadev

(4 of 9) [CRLA-267/1992]

Singh, deceased received single injury on his head which was the

cause of death which has been assigned to accused Ram kumar

who has now expired. All the other injured witnesses received

simple injuries by blunt weapon. Only injured Suresh Kumar

received grievous injury which is also on his non-vital party of

body i.e. metacarpal bone. It is argued that a compromise has

also arrived at between the appellants and complainant party and

the compromise deed has been filed before this Court. Learned

counsel for the appellant makes a submission that the incident

relates back to year 1988 and the appellant Prabhudayal has

remained in custody for a period of six months and Amar Singh

has undergone incarceration for a peirod of five months in

custody. If this Court does not deem it a case fit for acquittal, then

without making any interference on merits/conviction, the

sentence awarded to the present appellants may be substituted

with the period of sentence already undergone by them.

Learned Public Prosecutor appearing on behalf of the

respondent-State vehemently opposed the prayer made by

learned counsel for the accused-appellants and submitted that

there is no reason to disbelieve the prosecution evidence and

learned Trial Court has rightly convicted and sentenced the

accused-appellants. He prayed that the impugned judgment and

order passed by the Trial Court may be sustained and sentence

awarded to the accused-appellants by the learned Trial Court be

maintained by this Court.

I have considered the submissions of the learned counsel for

the accused-appellants as well as learned Public Prosecutor and

also gone through the entire record.

(5 of 9) [CRLA-267/1992]

I have perused the statements of prosecution witnesses and

find that the injured witnesses as well as other witnesses

specifically state that the deceased appellant Ram Kumar had

inflicted head injury to the deceased. According to the

postmortem report as well as statement of PW/4 Dr. Sahadev

Singh, the deceased received only single injury on his dead which

was the cause of death. The appellant Ram kumar has already

expired and the injuries received by injured which were inflicted

by present appellants Prabhudayal and Amar Singh are simple in

nature except one injury on Suresh Kumar which is although

grievous but on non-vital party of the body. There are cross-cases

between the parties and FIR has been filed against the

complainant party which is exhibited as Ex.D/4 in which challan

was present against the complainant party. It has also come on

record that a compromise has arrived at between the parties. So

far as the sentence part is concerned, a sentence should neither

be too lenient nor disproportionately severe. The former looses its

deterrent effect and the latter has a tendency to tempt the

offenders to commit a more serious offence. It is the duty of the

court to impose a proper punishment depending upon the degree

of criminality and desirability to impose such punishment as a

measure of social necessity as a means of deterring other

potential offenders. Punishment to be proper, effective and

purposeful must fit not only the crime but also the criminal.

Since it is case of causing injuries by blunt weapon and

appellants have remained behind the bars for some time so also

undergone mental as well as physical agony of protracted trial for

last thirty four years, leniency can be shown to some extent.

(6 of 9) [CRLA-267/1992]

Hon'ble Apex Court in Surinder Singh Vs. State (Union

Territory of Chandigarh) : 2022 (1) BLJ 366 wherein it was

observed as under:-

"Appellant-Surinder Singh has laid challenge to the judgment dated 19th May 2010 of the High Court of Punjab & Haryana, whereby, the order of his conviction and sentence dated 25th July 2006 passed by Learned Additional Sessions Judge, Chandigarh was confirmed. The Appellant has been convicted Under Section 307 of the Indian Penal Code, 1860 (hereinafter 'IPC') and Section 27 of the Arms Act, 1959 (hereinafter, 'Arms Act'), and sentenced to rigorous imprisonment of 3 years for both the offences, with a direction that sentences will run concurrently.

We are thus of the considered opinion that whilst motive is infallibly a crucial factor, and is a substantial aid for evincing the commission of an offence but the absence thereof is, however, not such a quintessential component which can be construed as fatal to the case of the prosecution, especially when all other factors point towards the guilt of the Accused and testaments of eye-witnesses to the occurrence of a malfeasance are on record.

The Appellant was admittedly a police official at the time of the incidence and the arms and ammunitions used for the commission of the offence, were placed in his possession under the sanction accorded by the Competent Authority. The Appellant being in authorised possession of the weapon, cannot be said to have used an unlicensed weapon, as prohibited Under Section 5 of the Arms Act. It appears that the

(7 of 9) [CRLA-267/1992]

Trial Court was swayed by irrelevant considerations such as illegal use of the weapon, and lost track of the objective of the Statute, which has been enacted to provide a licensing/regulatory regime, to enable law- abiding citizens to carry arms, and also to prohibit the possession, acquisition, manufacture, etc. of certain categories of firearms, unless authorized by the Central Government. In other words, illegal use of a licensed or sanctioned weapon per se does not constitute an offence Under Section 27, without proving the misdemeanour Under Section 5 or 7 of the Arms Act. At best, it could be a 'misconduct' under the service rules, the determination of which was not the subject of the trial. 31. In light of the afore-stated discussion, we find that the order of the Trial Court in convicting the Appellant or of the High Court in maintaining such conviction Under Section 27 of the Arms Act, is unwarranted and unjust. Accordingly, the Appellant is acquitted of the charge Under Section 27 of the Arms Act.

..... Adverting to the facts of the case, in hand, we are of the considered view that at this stage, the sentence awarded to the Appellant is no longer in degree to the crime which he has committed. Remitting the Appellant to the rigors of imprisonment at this juncture of his life would not serve the ends of justice due to following mitigating factors:

a. No motive or element of planning has been proved by the Prosecution in the present case which indicates the possibility that the offense could have been committed on impulse by the Appellant. Hence, the culpability of the offender in such situations is less than that which is ascribed in premeditated offenses as the commission of planned illegal acts denotes an attack on societal values with greater

(8 of 9) [CRLA-267/1992]

commitment and continuity in comparison to spontaneous illegal acts.

b. Even though the factum of injury may not have a direct bearing on a conviction Under Section 307 Indian Penal Code, the same may be considered by a Court at the time of sentencing. No doubt, the offence committed by the Appellant squarely falls within the four corners of Section 307 Indian Penal Code, but fortunately neither the complainant nor any other person was hurt by the untoward act of the Appellant.

c. Appellant has already undergone a sentence of 3 months and 19 days. Additionally, despite the occurrence taking place in 1999, there is no indication that Appellant has been involved in any untoward activity before or after the incident. This highlights the Appellant's good character and indicates that the incident can be interpreted as an isolated lapse of judgment. Further, the Appellant's clean post- incident behaviour suggests that he is rational individual who is capable of responding to the social censure associated with the offence. Hence, the passage of a long time period coupled with a clean record, both before and after the incident is definitely a factor that calls for mitigation of sentence.

d. Barring this particular incident wherein he was under the influence of alcohol, the Appellant had an unblemished service record with sixteen good citations in his favour. This indicates that he was a valuable member of society than the present criminal incident might lead one to assume. This is not to say that courts should draw up a social balance sheet when sentencing, but only to take these

(9 of 9) [CRLA-267/1992]

positive social contributions as a factor for mitigation of sentence.

e. Lastly, it is to be noted that the Appellant was suspended in the year 1999 and has also been subsequently dismissed from service in the year 2007. Hence, this should also be considered as a reasonable factor for mitigation because the dismissal and the consequent loss of social security benefits such as pension, also construes as a form of social sanction."

Hon'ble Apex Court in the case of 'Haripada Das Vs. State of

W.B. : (1998) 9 SCC 678 has observed as under:-

"considering the fact that the respondent had already undergone detention for some period and the case is pending for a pretty long time for which he had suffered both financial hardship and mental agony and also considering the fact that he had been released on bail as far back as on 17- 1-1986, we feel that the ends of justice will be met in the facts of the case if the sentence is reduced to the period already undergone"

Accordingly, the appeal is partly allowed. While maintaining

the appellants' conviction and sentence for offence under Sections

304-II, 325/34, 323/34, 325 IPC, the sentence awarded to them

is reduced to the period already undergone by them. The fine

imposed by the trial court is not interfered with. Two month's time

is granted to deposit the fine before the trial court. Appellants are

on bail. Their bail bonds shall stand discharged on deposition of

fine. The record of the trial court be sent back forthwith.

(MANOJ KUMAR GARG),J 87-BJSH/-

Powered by TCPDF (www.tcpdf.org)