Tejmal And Ors vs State Of Rajasthan Through Pp
2022 Latest Caselaw 3816 Raj/2

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                   D.B. Criminal Appeal No. 563/2015

1. Tejmal S/o Juwana, Aged 38 years,
2. Nola S/o Juwana, Aged 30 yrs,
3. Jagdish S/o Juwana, Aged 40 yrs,
4. Dev Lal S/o Jagdish, Aged 20 yrs,
5. Devkaran S/o Harji, Aged 20 yrs,
6. Radhey Shyam S/o Harji, Aged 26 yrs,
7. Nanda S/o Unkar, Aged 60 yrs,
8. Kajod S/o Nanda, Aged 26 yrs.
     All are R/o Village Tehla, P.S. Hindoli, District Bundi (Raj.)
     (Accused in Central Jail, Kota)
                                                          ----Accused/Appellants
                                      Versus
State Of Rajasthan
                                                                        ----Respondent

For Appellant(s)            :     Mr. R.R. Goyal
                                  Mr. B.R. Choudhary
For Respondent(s)           :     Mr. Javed Choudhary, Addl. Govt. Adv.



             HON'BLE MR. JUSTICE PANKAJ BHANDARI
             HON'BLE MR. JUSTICE BIRENDRA KUMAR

                                   Judgment

Reserved on                               :               29/03/2022

Date of Pronouncement                     :               13/05/2022

(PER HON. BIRENDRA KUMAR,J.):

1.     All   the   eight   appellants         faced     trial      in   Sessions   Case

No.31/2013 arising out of FIR No.27/2013 registered with Police

Station Hindoli for offence(s) under Sections 147, 148, 341,

323/149 & 302/149 IPC. On trial before the learned Sessions

Judge, the appellants were found guilty vide impugned judgment

(2 of 6) [CRLA-563/2015]

dated 11.06.2015 and on the same day, the learned trial Judge

passed the following sentences :-

U/s 147 IPC - 6 months rigorous imprisonment U/s 148 IPC - one year rigorous imprisonment U/s 341 IPC - 15 days simple imprisonment U/s 323/149 IPC - 3 months rigorous imprisonment U/s 302/149 IPC - Life imprisonment and fine of Rs.2000/- in default six months simple imprisonment

Sentences are to run concurrently.

2. The prosecution examined altogether 19 witnesses and 61

documents were exhibited from Ex.P.1 to Ex.P.61. Among the

prosecution witnesses, only two are eye-witnesses. They are

P.W.6-Satyanarayan and P.W.16-Devraj. The informant of the case

P.W.9-Bhimraj is not an eye-witness of the occurrence.

3. According to the First Information Report submitted by

P.W.9-Bhimraj on 09.01.2013, father of the informant namely

Kalyan was going to his village from his well on the field side.

P.W.16-Devraj was driving the motorcycle, whereas P.W.6-

Satyanarayan was sitting on the middle and Kalyan was sitting

behind Satyanarayan. When they reached near talai at 11 a.m.,

found that someone had put thorn hedges on the way. From the

hedges, all the eight appellants came out. They were armed with

axes, gandasis and wood sticks. All the accused persons started

assault against the father of the informant and when Devraj and

Satyanarayan tried to intervene, they were also assaulted. On

hearing alarm, Prakash and Gangabishan reached there.

Thereafter, the accused persons fled away. The injured was taken

to the hospital. The informant further states that dispute for the

(3 of 6) [CRLA-563/2015]

said well between the parties was reason for old discord which led

to the occurrence of assault against the father of the informant.

4. P.W.6-Satyanarayan and P.W.16- Devraj have supported the

prosecution case as eye-witnesses of the occurrence to the extent

that Satyanarayan, Devraj and Kalyan were going on the

motorcycle from the well to their village and on the way, the

accused persons committed assault to Kalyan which resulted in his

death during the course of treatment. On perusal of entire

testimony of P.W.6 and P.W.16, it appears that the witnesses are

consistent and reliable.

5. Learned counsel for the appellants contends that even if the

testimonies of P.W.6 and P.W.16 are believed, it is not the

prosecution case that the appellants were carrying any intention

to commit murder. The doctor has found injury on non-vital parts

of the body, i.e. legs and arms, whereas the accused persons had

sufficient opportunity to commit injury on vital part as well, if they

would have intended to commit murder. Therefore, conviction

under Section 302 of IPC is apparently illegal.

6. Learned Public Prosecutor contends that the learned trial

Judge has meticulously considered all the prosecution evidences

specially of the eye-witnesses, and the charges were found proved

against the appellants which requires no interference.

7. We have perused the material on record.

8. On the date of occurrence itself, P.W.3-Chotu Lal Dadhich had

examined injuries of deceased-Kalyan and noticed as follows :-

"1. Cut wound at the left leg lower part

2. Punctured wound near knee

3. Punctured wound at the right leg

(4 of 6) [CRLA-563/2015]

4. Cut wound at the right leg on front side

5. Swelling near left wrist

6. Punctured wound at the left palm

7. Punctured wound near right wrist

8. Swelling with redness on left knee

9. Swelling at the occipital region"

The head injury was simple in nature and could have been

possible by fall on any hard sustance.

9. P.W.12-Dr. Anil Saini, at the time of postmortem

examination, noticed as follows:-

"1. Right forearm was fractured

2. The humerus bone of left arm was fractured

3. There was swelling at the left wrist and radius bone was

fractured

4. Redness on the left arm

5. Fracture of bone on the left leg

6. Cut injury at the right leg

7. Punctured wound penetration like at the right leg

causing fracture of tibia and fibula

8. Cut wound at the left leg causing fracture of tibia and

fibula

9. Swelling near left knee with fracture of bone

10. A penetrating wound on left palm"

The cause of death was haemorrhage and shock due to

profuse bleeding.

10. Learned counsel for the appellants has relied upon judgment

of a Division Bench of this Court in the case of Kanhaiya Lal Vs.

State of Rajasthan, reported in 2014 (3) Cr.L.R. [Raj.] 1169,

wherein incised wound was found by the doctor on middle part of

(5 of 6) [CRLA-563/2015]

the head and abrasion on the right leg. The Division Bench has

relied upon following judgments :-

1. Kapoor Singh v. State of Pepsu, AIR 1956 SC 654;

2. Shanmugam @ Kulahdavelu v. State of Tamil Nadu, AIR 2003 SC 209;

3. Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327;

4. Mahesh v. State of Madhya Pradesh, (1996) 10 SCC 668;

5. Jagroop Singh v. State of Haryana, (1981) 3 SCC

614.

It was held by the Division Bench that the prosecution failed

to prove a case under Section 302 IPC rather the proved charge

was under Section 304-I of IPC.

11. In the case of Hariram v. State of Rajasthan through

P.P., 2021 (2) WLC (Raj.) UC 52, the injuries found were

bruises at the chest and abdomen of the deceased. Considering

the prosecution evidence on record, the Division Bench held that

the accused cannot be clothed with either intention or knowledge,

that by causing such injury on chest of victim, that would cause

his death. The court had relied on Kashi Ram & Ors. v. State of

Madhya Pradesh (AIR 2001 SC 2902), Dev Raj & Ors. v. State of

Himachal Pradesh (AIR 1994 SC 523) and Tara Chand & Ors. v.

State of Haryana (AIR 1971 SC 1891).

12. Considering the material on record and the settled principles

of law, with regard to appreciation of evidence to prove the charge

under Section 302 of IPC, we are of the considered view that the

prosecution has failed to proved the charge under Section 302 of

IPC in view of the allegations of commission of assault by eight

persons to the deceased but the injuries caused were on non-vital

parts of the body. Had the accused persons any intention to cause

(6 of 6) [CRLA-563/2015]

death, they were well armed with weapon of cutting, they could

have used the same on any vital part of the body. However, the

prosecution has proved and established that the accused persons

had knowledge while causing injury of cut at the limbs that the

profused bleeding might cause death. Therefore, we are of the

opinion that this one is a case wherein conviction under Section

302 of IPC is fit to be altered under Section 304-II of IPC.

13. Accordingly, while upholding the conviction and sentence for

offence under Sections 147, 148, 341, 323/149 of IPC for offence

u/s 304 Part-II, we deem it proper to impose sentence of ten

years Rigorous Imprisonment and fine of Rs. 2000/- each on all

the appellants and on non payment of fine, appellants to undergo

six months Simple Imprisonment.

14. In the result, this appeal is party allowed. All pending

application, if any, stands disposed of.

15. D.B. II Suspension of Sentence Appl. No. 729/2021 and D.B.

Suspension of Sentence Appl. No. 733/2021 also stands disposed

of.

(BIRENDRA KUMAR),J (PANKAJ BHANDARI),J

BRIJ MOHAN GANDHI

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