Pancha Ram vs State
2022 Latest Caselaw 7302 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                D.B. Criminal Appeal No. 314/2019

Pancha Ram S/o Shri Shankra Ram, Aged About 28 Years, By
Caste Bheel, Resident Of Ramgarh, P.s. Shergar, Tehsil Shergarh,
District Jodhpur (Raj.) (Accused Is Lodged In The District Jail,
Jodhpur)
                                                                  ----Appellant
                                   Versus
State, Through PP
                                                                ----Respondent


For Appellant(s)         :     Mr. Rajesh Kumar
For Respondent(s)        :     Mr. B.R. Bishnoi, AGC



           HON'BLE MR. JUSTICE SANDEEP MEHTA
     HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

                                Judgment

17/05/2022


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

1. The appellant herein has been convicted and sentenced as

below vide judgment dated 08.11.2019 passed by learned

Sessions Judge, Jodhpur in Sessions Case No.73/2016:-

Offence    Sentences             Fine                Sentence in lieu of
under                                                default of payment of
Section                                              fine
302 IPC    Rigorous   Life Rs.25,000/- 1 month's Additional R.I.
           Imprisonment
341 IPC    --                    Rs.500/-            5 Days' SI

323 IPC    -                     Rs.1,000/-          5 Days' SI





                                          (2 of 10)                [CRLAD-314/2019]

2. He has preferred the instant appeal under Section 374(2)

Cr.P.C. for assailing the impugned judgment of conviction and the

sentences awarded to him by the trial court.

3. Briefly stated the facts relevant and essential for disposal of

the instant appeal are noted hereinbelow:-

Manohar (PW.2) submitted a written report (Ex.P/1) to the

SHO Police Station Shergarh on 27.02.2016 at 10:00 PM alleging

inter alia that on the same day evening at about 8:30, his father

Shri Ramesh Kumar was proceeding towards Punjaram Ki Dhani.

Pancha Ram came across with a lathi in his hand and launched an

assault on Shri Ramesh Kumar who raised a hue and cry. On

hearing the sounds of commotion, the informant, his mother and

Shri Punja Ram rushed to the spot and in their view, Pancha Ram

inflicted a lathi blow on the head of his mother. The neighbours

collected on which, Pancha Ram ran away. His parents were taken

to the Shergarh Hospital. His father received serious injuries on

his temple as a result whereof he expired. An enquiry was made

from the informant who disclosed that his father Ramesh Kumar

and the accused Pancha Ram were taxi drivers and a dispute had

arisen between them owing to a stepney which was the motive

behind the assault.

4. On the basis of this written report, FIR No.27/2016 (Ex.P/13)

came to be registered at the Police Station Shergarh, Jodhpur

Rural for the offences punishable under Sections 341, 323 and

302 IPC. Usual investigation was undertaken. The accused was

arrested. Postmortem was conducted on the dead body of Shri

(3 of 10) [CRLAD-314/2019]

Ramesh Kumar by a Medical Board constituted at the Community

Health Centre, Shergarh. The Board issued the postmortem report

(Ex.P/9) taking note of following injuries:-

(i) Lacerated wound behind right pinna about 3 x 1 cm.

(ii) Multiple bruises approximately 12 x 4 cms on chest.

(iii) Lacerated wound on the right great toe.

On opening the scalp, fracture was found at the right

parietal region. Ribs on left side were fractured. The Medical Board

gave an opinion that cause of death of Shri Ramesh Kumar was

massive haemorrhage caused by head injury.

5. Investigation was concluded and charge-sheet came to be

filed against the accused-appellant for the offences punishable

under Sections 341, 323, 302 and 447 IPC. The case was

committed to the Court of Sessions Judge, Jodhpur where charges

were framed against the accused appellant for the offences

punishable under Sections 341, 323 and 302 IPC. He pleaded not

guilty and claimed trial. The prosecution examined as many as

eleven witnesses and exhibited sixteen documents to prove its

case. The accused denied the prosecution allegations in his

statement recorded under Section 313 Cr.P.C. and examined two

witnesses in defence. After hearing arguments advanced by

learned Public Prosecutor and the defence counsel and

appreciating the evidence available on record, learned trial court

proceeded to convict and sentence the appellant as above. Hence,

this appeal.

                                         (4 of 10)                   [CRLAD-314/2019]



6.   Shri   Rajesh    Kumar,        learned         counsel      representing   the

appellant, vehemently and fervently contended that the entire

prosecution case is false and fabricated. The testimony of the

alleged eyewitnesses Smt. Kamla Devi (PW.1) and the informant

Manohar (PW.2) is not reliable. Both the witnesses have given

contradictory statements regarding the place of incident which is

noted in the site inspection plan (Ex.P/6). As a matter of fact, a

sudden quarrel took place between the appellant and the

deceased, who was heavily intoxicated and during the scuffle, the

deceased fell down on stones and received injuries. He thus,

urged that conviction of the appellant as recorded by the trial

court for the offence punishable under Section 302 IPC is not

justified and deserves to be toned down to Section 304 Part-II

IPC. In support of his contentions, Shri Rajesh Kumar placed

reliance on the following judgments:-

(1) Ananta Kamilya vs. State of West Bengal, reported in

AIR 2020 SC 315

(2) Jugut Ram vs. State of Chhatisgarh, reported in AIR

2020 SC 4395

(3) Ilangovan vs State of Tamil Nadu, represented by

Inspector of Police, reported in AIR 2020 SC 5335

(4) Bher Singh Purohit & Ors. vs State of Rajasthan,

reported in 2018 (2) Cr.L.R. (Raj.) 636,

(5) Magni Ram Balai vs. State of Rajasthan, reported in

2018 (2) Cr.L.R. (Raj.) 1064

7. Learned Public Prosecutor on the other hand, vehemently

and fervently opposed the submissions of the appellant's counsel

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and contended that the evidence of the witnesses Smt. Kamla

Devi (PW.1) and Manohar (PW.2) remained unshaken despite

prolonged cross-examination. Both the witnesses were

unquestionably present at the spot. Smt. Kamla Devi received

injuries in this very incident. The appellant was having prior

animosity with the deceased Ramesh Kumar owing to the dispute

of spare tyre. On the fateful day, while the deceased was

proceeding to the house of Shri Punja Ram, he was waylaid by the

accused and was assaulted with lathi. Repeated blows were given

by the accused on the head and chest of the victim leading to

fracture of parietal bone as well as ribs. The medical evidence

fully corroborates the testimony of the eyewitnesses. The trivial

contradictions regarding the place of incident cannot in any

manner impeach the evidentiary worth of the eye-witnesses. The

accused himself, in his statement under Section 313 Cr.P.C.

admitted the incident and stated that a scuffle took place between

him and the deceased Ramesh Kumar who fell down on the

ground and received the injuries. The defence witnesses also

admitted that a scuffle took place between the accused and the

deceased and thus, the incident is not disputed. He thus, urged

that the case at hand does not involve any such circumstance

which can be considered valid for acquitting the accused or toning

down the offences. With these submissions, he implored the Court

to dismiss the appeal and affirm the appellant's conviction.

8. We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

impugned judgment and the record.

(6 of 10) [CRLAD-314/2019]

9. At the outset, it may be noted here that the incident took

place at around 8:30 pm. The written report (Ex.P/1) came to be

lodged by PW.2 Manohar S/o Shri Ramesh Kumar at the Police

Station Shergarh at 10:00 PM i.e,. within one and a half hour of

the incident. PW.1 Smt. Kamla Devi, wife of the deceased Ramesh

Kumar, upon being examined on oath gave convincing testimony

alleging that she heard the cries of her husband on which, she and

her son rushed there. She tried to intervene on which, the

accused pushed her and inflicted a lathi blow on her head. Her

father-in-law Shri Punja Ram came at the spot whereafter Pancha

Ram ran away. Her husband was beaten by Pancha Ram owing to

a stepney. The defence counsel tried to harp upon some

contradictions in the evidence of the witness wherein, she alleged

that the incident took place in front of her father-in-law's house

and not in the back side. However, this contradiction is absolutely

trivial and inconsequential. The fact remains that the incident took

place in the courtyard of Shri Punja Ram's house. The evidence of

the witness regarding the assault made by the accused on Ramesh

Kumar and herself remains unimpeached.

10. Manohar (PW.2), the first informant gave categoric evidence

stating that he heard the cries of his father on which, he, his

mother and his grand-father Punja Ram ran out and saw the

accused assaulting Shri Ramesh Kumar by a lathi. The witness

could not be shaken from his version in the examination-in-chief

despite prolonged cross-examination. Punja Ram (PW.8) also

supported the prosecution case and his evidence is also reliable.

(7 of 10) [CRLAD-314/2019]

11. The defence came out with a theory that a sudden quarrel

took place between the accused and the deceased and in the

midst thereof, Shri Ramesh Kumar fell down and received injuries

due to stones lying on the ground. The accused, in his statement

under Section 313 Cr.P.C. took this very plea. The defence

witnesses Ramesh Kumar (DW.1) and Gokal Ram (DW.2) also

gave evidence stating that a quarrel took place between Ramesh

who was in an inebriated condition and Pancha Ram and during

the course thereof, both grappled with each other. Ramesh Kumar

fell down and received injury on his head due to stones, which

resulted in excessive bleeding and Shri Ramesh Kumar expired.

12. On a perusal of the testimony of the medical jurist Dr.

Mukesh (PW.7), it becomes clear that the injuries which were

noted by the doctor were lacerated wounds and bruises behind the

ear and on the chest area. The dimensions of the bruises on the

chest were noted as 12 x 4 cms. By no stretch of imagination,

such bruises could have been caused by fall on a stone. No

suggestion was given to Dr. Mukesh (PW.7) that injuries suffered

by Ramesh Kumar could be caused by falling on hard surface. The

doctor stated that on opening the body, the right parietal bone

was fractured. The left side ribs were fractured. Heart and

pericardium were ruptured. Thus it is clear that repeated blows of

lathi were inflicted by the accused to the deceased with great

force causing excessive damage to vital body organs viz. brain,

ribs, heart and pericardium. Hence, the case of the appellant is

covered by Clauses firstly and secondly of Section 300 IPC.

(8 of 10) [CRLAD-314/2019]

13. Now, we proceed to discuss the precedents cited by learned

counsel Shri Rajesh Kumar.

In the case of Ananta Kamilya (supra), the facts revealed

that the incident took place at the spur of moment. During

altercation, the accused lifted a lathi lying on the spot and inflicted

a single blow thereof to the deceased. In these circumstances,

Hon'ble the Supreme Court altered the conviction of the accused

from the offence punishable under Section 302 IPC to Section 304

Part-I IPC holding that the case fell under Exception 4th to Section

300 IPC.

In the present case, multiple injuries were caused by the

accused to the deceased on his vital body parts without any

premeditation. Thus, the said judgment does not help the cause of

the appellant.

14. In the case of Jugut Ram (supra), the accused inflicted a

solitary blow on the head of the deceased. Hon'ble the Supreme

Court held that the assault was not pre-meditated. The incident

occurred in a heat of passion due to a land dispute. The deceased

expired on the following day of the assault. Hon'ble Supreme

Court considered the peculiar facts of the case and altered the

conviction of the accused therein from Section 302 IPC to Section

304 Part II IPC. The facts of the said case are also distinguishable

from the case at hand.

15. In the case of Magni Ram Balai (supra) after appreciating

the evidence available on record, Division Bench of this Court held

(9 of 10) [CRLAD-314/2019]

that it was not possible to identify the assailant who inflicted

particular fatal injury to the deceased and in those circumstances,

the conviction was altered from Section 302/34 IPC to Section 304

Part I/34 IPC. The situation in the case at hand is otherwise,

because it is a case of repeated injuries by a single accused on the

vital body parts of the deceased.

16. In the case of Bher Singh Purohit (supra), Hon'ble Division

Bench of this Court held that genesis of occurrence was

suppressed. The incident occurred all of sudden and without pre-

meditation and in those peculiar facts, the conviction of the

accused was altered from Section 302 IPC to Section 304 Part II

IPC. The facts of the said case are also distinguishable from the

case at hand.

17. In wake of the discussion made hereinabove, we are of the

firm view that the trial court appreciated the evidence available on

record in an apropos manner and rightly held the accused

appellant guilty for the offence punishable under Section 302 IPC.

The accused appellant without any provocation, inflicted multiple

lathi blows on the head and chest of the deceased causing fracture

of the right parietal bone and the ribs. The blows on the chest

were so severe that the heart and the pericardium were ruptured.

Case of the appellant is not covered by any of the exceptions to

Section 300 IPC and hence, the offence cannot be toned down

from Section 302 IPC. Consequently, we are not inclined to

interfere in the impugned judgment dated 08.11.2019 which does

(10 of 10) [CRLAD-314/2019]

not suffer from any infirmity whatsoever. The appeal fails and is

thus, dismissed as being devoid of merit.

18. Record be returned to the trial court forthwith.

(VINOD KUMAR BHARWANI),J (SANDEEP MEHTA),J 7-Sudhir Asopa/-

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