Rajasthan High Court - Jodhpur

Fula @ Fulchand vs State on 17 May, 2022

Bench: Sandeep Mehta, Vinod Kumar Bharwani

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Appeal No. 304/2019

Fula @ Fulchand S/o Shri Nanji Gameti, Aged About 42 Years, By Caste Gameti, R/o Mundavali, P.s. Jhadole, District Udaipur (Raj.) (At Present Lodged In Central Jail, Udaipur)

----Appellant Versus State, Through PP

----Respondent

For Appellant(s) : Mr. Vivek Mathur 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

The appellant Fula @ Fulchand has preferred the

instant appeal under Section 374(2) of the CrPC to assail the

judgment dated 14.08.2019 passed by the learned Additional

Sessions Judge No.5, Udaipur in Sessions Case No.148/2016,

whereby he has been convicted for the offence punishable under

Section 302 IPC and sentenced to undergo life imprisonment

alongwith a fine of Rs.10,000/- and in default of payment of fine,

further to undergo additional simple imprisonment of three

months'.

Brief facts relevant and essential for disposal of the

appeal are noted hereinbelow:-

Mr. Thawara (P.W.1) submitted a written report (Ex.P/1)

to the SHO, Police Station Jhadol, District Udaipur on 15.05.2016

alleging inter alia that on the previous day, i.e. 14.05.2016, he

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had engaged the tractor of Pratap S/o Shankar Ji for transporting

stones. The tractor reached his home at about 02.00 p.m. The

informant's son Ambalal, aged 19 years, was sent to the quarry

alongwith the labourers Chatarlal S/o Pratap, Kishan S/o Pratap,

Gopilal S/o Chhaganlal and tractor driver Kailash S/o Pratap to

Mahuda Khadara for loading the stones and transporting them to

the field of the complainant, where a boundary was being

constructed. Three trips of the stone trolleys had already been

unloaded at the field. Thereafter, the tractor had gone back to the

quarry for the fourth trip and was in process of being loaded.

Chatarlal came to the informant and told him that they were

loading stones in the tractor. Ambalal was sitting on the front

tyre. The time was about 06.30 in the evening. Fula S/o Nanji

(the appellant herein) came there and called Ambalal towards

him. He was armed with a lathi of which, he gave a blow on the

temporal region of Ambalal with an intention of killing him.

Ambalal fell down on receiving the lathi blow. Fula then went

away from the spot. Ambalal succumbed to the injuries. On

receiving this information, the informant proceeded to the field of

Fula and saw Ambalal's lifeless body lying on the ground. The

informant got annoyed and questioned the tractor driver and the

labourers as to why they did not try to save the boy on which,

they stated that despite all their efforts, Fula assaulted Ambalal

and ran away. Fula was objecting to the tractor going through the

water channel and because of this motive, he had launched the

assault. On the basis of this report, FIR No.73/2016 (Ex.P/19)

came to be registered at the Police Station Jhadol and

investigation was commenced. The dead body of Ambalal was

subjected to postmortem at the hands of Dr. Vardichand (P.W.15),

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the Medical Officer at CHC, Jhadol, who carried out the autopsy

and issued the postmortem report (Ex.P/13) taking note of

numerous abrasions and marks of swelling on the neck, shoulder,

back and arm of the deceased. The Medical Officer noticed blood

oozing out from the nose and mouth of the victim. The area

underneath the left ear was swollen. All internal organs except

the head were unaffected. When the skull was opened,

extravasation of blood was noticed. The Medical Officer opined

that the cause of death of Ambalal was subdural haematoma as a

result of the head injury. Upon conclusion of the investigation,

charge-sheet came to be filed against the appellant herein for the

offence punishable under Section 302 IPC. The case was

committed to the Court of Sessions Judge, Udaipur from where, it

was transferred to the Court of Additional Sessions Judge, Women

Atrocities Cases, Udaipur for trial. Charge was framed against the

appellant, who pleaded not guilty and claimed trial. The

prosecution examined 16 witnesses and exhibited 22 documents

to prove its case. The accused denied the prosecution allegations

in his statement under Section 313 CrPC and claimed that the

victim fell down and received the injuries leading to his death.

One witness was examined in defence. Upon conclusion of the

trial and after hearing arguments advanced by the appellant's

counsel and the learned Public Prosecutor, the learned trial court

proceeded to convict and sentence the appellant as mentioned

above. Hence this appeal.

Shri Vivek Mathur, learned Amicus Curiae representing

the appellant urged that the testimony of the eye-witnesses is

unbelievable and is contradicted by the medical evidence. He

referred to the statements of the witnesses Kailash (P.W.3),

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Chatarlal (P.W.4), Kishanlal (P.W.5), Gopilal (P.W.7), the so-called

eye-witnesses, and the Medical Jurist Dr. Vardichand (P.W.15), and

urged that the witnesses have alleged that the accused inflicted

lathi blow on the neck of the victim, whereas no corresponding

injury was found on the body of the deceased. He urged that the

defence has come out with a clear case that Ambalal fell down

from the tractor and received the injuries and expired as a result

thereof. The Medical Jurist Dr. Vardichand (P.W.15) categorically

stated that the injuries noticed on the dead body of the victim

could have been caused by falling down from a tractor. The

Medical Jurist did not state that there was any fracture at the

location of the head injury. Thus, Mr. Mathur urged that even if

the testimony of the eye-witnesses is to be believed, conviction of

the appellant cannot be sustained for the offence punishable

under Section 302 IPC and he can be convicted only for the

offence punishable under Section 323 IPC or at best for the

offence punishable under Section 304 Part II IPC. In support of

this contention, Mr. Mathur placed reliance on the Supreme Court

judgments in the cases of Jugut Ram Vs. The State of

Chhattisgarh [(2020) 9 SCC 520], Jagat Singh Vs. State of

Himachal Pradesh [(2011) 2 SCC 234] and the Division Bench

judgment of this court in Dunga Ram Vs. State of Rajasthan

[1996 Cri LJ 3672] and implored the court to accept the appeal,

set aside the appellant's conviction and acquit him. His alternative

submission was to tone down the offence with corresponding

reduction in the sentence awarded to the appellant.

Learned Public Prosecutor, on the other hand,

vehemently and fervently opposed the submissions advanced by

the appellant's counsel. He urged that the victim was peacefully

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occupied in loading stones in the tractor trolley when the appellant

herein launched an unprovoked attack at him. He referred to the

statements of the eye-witnesses Kailash (P.W.3), Chatarlal (P.W.4),

Kishanlal (P.W.5) and Gopilal (P.W.7) and urged that all the 4

witnesses have given unimpeachable evidence stating that the

appellant called Ambalal towards him and inflicted blows of lathi

on his person. Learned Public Prosecutor also submitted that the

Medical Jurist took note of multiple injuries on the head and other

body parts of the deceased and opined that the head injury

resulted into subdural haematoma causing death of Ambalal, who

was a young boy aged 19 years. Thus, as per the learned Public

Prosecutor, the conviction of the appellant as recorded by the trial

court for the offence punishable under Section 302 IPC does not

warrant any interference. On these arguments, learned Public

Prosecutor implored the court to dismiss the appeal.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

impugned judgment and the original record.

At the outset, we would like to take note of the injuries

noticed by the Medical Jurist Dr. Vardichand (P.W.15) in the

postmortem report (Ex.P/13). He took note of the following

injuries on the body of Ambalal :

 Swelling below left ear with abrasion from mid throat to mid

back occipital region.

 Abrasion on left shoulder

 Abrasion on left back.

 Abrasion on left arm.

 Blood coming out from nose and mouth.

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Subdural haematoma was noticed in the cranium,

however, exact location thereof was not mentioned in the

postmortem report. The doctor gave a conclusion that the subject

died due to subdural haematoma, which in turn was a result of the

head injury. He did not, however, state that the injuries were

sufficient to cause death in the ordinary course of nature.

Now we proceed to discuss the evidence of the eye-

witnesses.

Kailash (P.W.3) stated that Ambalal was sitting on the

tractor. Fula came there and called Ambalal and then gave him

two lathi blows, which landed above his ear. He denied the

defence suggestion that Ambalal fell down from the tractor and

expired as a result thereof.

Chatarlal (P.W.4) stated that he, Ambalal and other

witnesses had gone to Mahuda Khadra in the tractor trolley for

loading stones. Ambalal was sitting on the tyre when Fula called

him towards himself and inflicted a lathi blow above his ear.

Ambalal expired because of the injury. In cross-examination, a

suggestion was given to the witness that Ambalal fell down from

the running tractor and received the injuries, which he denied.

Similar statement was given by Kishanlal (P.W.5) and

Gopilal (P.W.7).

Manifestly, these witnesses had no animosity

whatsoever with the appellant, which could instigate them to

falsely implicate him in the incident.

As per the allegations set out in the FIR, the appellant

was objecting to the transit of the tractor from a water channel,

whereafter the incident took place. This seems to be the

immediate cause of the incident. The appellant admittedly had no

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animosity whatsoever with the deceased. The incident seems to

have taken place at the spur of the moment without any pre-

meditation. The eye-witnesses alleged that the accused inflicted a

lathi blow on the ear of the victim. However, as per the evidence

of Dr. Vardichand (P.W.15), he did not notice lacerated wounds

anywhere on the body of the deceased. Swelling was noticed

below the left ear and subdural haematoma was noticed

underneath the cranium. The doctor did not state that any

fracture or other grievous injury was noticed anywhere on the

body of the deceased.

In view of the above facts, it is apparent that the

accused appellant might have inflicted a lathi blow to Ambalal

while he was sitting on the tractor and in all probability, the victim

fell down from the tractor and received the injuries, which resulted

into his death. We may note that the dimensions of the injury

noticed on the ear of the deceased do not convince us that the

same could have been the result of a lathi blow. More likely, the

said injury seems to be result of falling from tractor. In any event,

the lathi blows attributed to the appellant did not result into any

grievous injury being caused to the victim and hence, we are of

the firm opinion that the appellant could not have been convicted

for the offence punishable under Section 302 IPC.

Our view is fortified by the judgment in the case of

Jagat Singh (supra), wherein the Hon'ble Supreme Court

discussed the medical evidence and held as below :-

"16. The post-mortem examination of the dead body of the deceased was performed by Dr. R.S. Dadhwal (PW-15) and he opined that the deceased died due to shock resulting from massive hemorrhage and injuries

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on the vital organs. The doctor noticed six wounds on the person of the deceased, on the nose, below the tip of left shoulder, posterior, on the right of the midline of the chest, on the left side of the chest and on the interior to the left axilla on the mis axillary line. Apart from the above injuries of the deceased as well as PW1, it is also relevant to note that the Appellant Jagat Singh (A-1) and his brother Rattan Singh (A-2) also sustained injuries in the same commotion.

17. Dr. Mrs. S. Sharma (DW-1), medically examined all the four accused and copies of which are marked as Exs. DA to DD respectively. Here again, we are concerned with the injuries on the person of Jagat Singh-Appellant alone.

1. There was a reddish brown small bruise of the size of 2 cms x 1 cm on the chest on the left side of the lower one third of sternum.

2. There was bluish bruise on the left hip of the size of 8 cm x 7 cm.

3. There was bluish bruise 10 cm x 1/3cms with intervening healthy area on the left side of the abdomen 5 cms above the left iliac crest.

4 . He had complained of pain on the right fore- arm. The injured was referred for treatment of bronchial asthama.

18. As rightly observed by the trial Judge, the perusal of the statement of PWs 1 and 3 and the doctors leave no scope for doubt that a free fight had taken place in which members of both sides got injured and one person succumbed to the injuries. We have already adverted to the statement recorded under Section 313

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of the Code, more particularly, the statement of the Appellant-Jagat Singh which have thrown light that in what manner the fight ensued and ended. We have already mentioned that from the evidence of prosecution side as well as the statement by the accused recorded under Section 313 of the Code, it is very much clear that a free fight had taken place. It is also clear and as narrated by the accused under Section 313 of the Code that to save themselves, they stabbed the deceased and the complainant. Both A1 and A2 happened to be baptized Sikhs and as per religious necessity they have to carry Gatra on their persons and in order to save them from the clutches of the deceased and the complainant, free blows were exchanged through Gatras. It is also seen from the evidence that the main blow on the chest of the deceased was caused by Rattan Singh who died pending appeal before the High Court. (A-3) and (A-4) were acquitted by the trial Court and the High Court dismissed the appeal against them.

19. Considering the evidence of the doctor with regard to the injuries sustained by the deceased, the complainant (PW-1) as well as the Appellant/accused and the evidence of (DW-1) who examined the accused, the trial Court has rightly observed that they had no requisite intention to kill the deceased as envisaged under Section 300. As discussed earlier, on account of meddling with the enquiry conducted by the ASO, both the parties sustained injuries out of which the deceased succumbed to the injuries.

20. From the materials placed by the prosecution as well as the defence, taking note of the fact that the trial Court has acquitted (A-3) and (A-4) and (A-2) died during the pendency of the appeal before the High Court, considering the nature of the injuries sustained

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by the deceased as opined by Dr. R.S. Dadhwal, (PW-

15), and the injuries sustained by the Appellant (A-1) as explained by Dr. Mrs. S. Sharma (DW-1), we hold that at the most, the Appellant could be held under Section 323 IPC for causing hurt on the body of the deceased. We are also of the view that there is no acceptable evidence to the fact that the Appellant had voluntarily caused hurt on the person of the deceased.

21. Considering all these events and taking note of the fact that the persons in both the groups, namely, complainant and the accused sustained injuries in a free fight and also of the fact that the Appellant A1 alone is before us, we feel that the ends of justice would be met by altering the conviction from Section 302 to Section 323. It is brought to our notice that he had served about a year in prison (pending trial) and is in prison for approximately seven months after conviction by the High Court, aged about 82 years and also suffering from asthma and other old age ailments. Considering all these aspects, we feel that the period undergone is sufficient and he be released forthwith if he is not required in any other offence. The appeal is allowed to this extent."

In the case of Dunga Ram (supra), Division Bench of

this court discussed a similar set of facts and altered the

conviction of the accused therein from the offence punishable

under Section 302 IPC to 323 IPC. The factual scenario of the

present case is squarely covered by the ratio of the above referred

judgment.

In wake of the discussion made hereinabove, the

accused can at best be held guilty for causing simple hurt to the

victim Ambalal.

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Accordingly, the instant appeal deserves to be and is

hereby allowed in part. The conviction of the appellant cannot be