Rajasthan High Court
Layakram S/O Shri Mangalram vs State Of Rajasthan ... on 22 August, 2023
Bench: Pankaj Bhandari, Bhuwan Goyal
[2023:RJ-JP:18632-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 112/2023
Layakram S/o Shri Mangalram, R/o Alipur Police Station
Mundawar Alwar, District Alwar (At Present The Accused
Appellant Is Confined In The Jail Kishangarhbas, Alwar)
----Appellant
Versus
State Of Rajasthan, Through Public Prosecutor
----Respondent
For Appellant(s) : Ms. Aradhana Swami, Adv.
For Respondent(s) : Mr. Javed Choudhary, Addl.G.A.
For Complainant(s) : None present
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE BHUWAN GOYAL
Judgment
22/08/2023
(Per Hon'ble Pankaj Bhandari, J.)
1. The accused appellant - Layakram has preferred this appeal
aggrieved by the judgment of conviction and order of sentence
dated 18.08.2017 passed by the Additional Sessions Judge No.2,
Kishangarhbas, Alwar, whereby the accused appellant has been
convicted for offence under Sections 148 and 302/149 of the
Indian Penal Code (hereinafter referred to as "the IPC"). For
offence under Section 302/149 of IPC, the appellant has been
sentenced to life imprisonment and a fine of Rs.25,000/- and in
default of payment of fine, to further undergo 3 months rigorous
imprisonment. For offence under Section 148 of IPC, the accused
appellant has been sentenced to 3 years rigorous imprisonment
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and a fine of Rs.1,000/- and on non-payment of fine, to further
undergo 1 month rigorous imprisonment.
2. Succinctly stated the facts of the case are that an FIR
bearing No.290/2012 (Exhibit-P36) was registered at Police
Station, Mundawar, District Alwar on a written report (Exhibit-P1)
on 06.08.2010. In the written report, it was stated that at around
8:00-9:00 am, the complainant's mother and wife saw accused
Hargyan, Layakram, Mahesh, Mangal, Smt. Leelee wife of Hargyan
and Bharpai wife of Layakram digging the foundation in the plot
belonging to them. The complainant's mother-Basanti asked them
to stop, at which, Hargyan having pharsi, Layakram and Mahesh
having axe, Mangal having phawada and other ladies, having
phawada & bankadi, attacked upon her, who expired on the spot.
The complainant's wife-Santosh raised an alarm, on which, the
complainant and his brother-Veer Singh reached the spot. All the
accused ran away immediately thereafter from the spot.
3. On the said written report, the investigation was done by the
police and after due investigation, the police filed charge-sheet
against the other co-accused of this case i.e. Hargyan, Mangal
Singh, Mahesh Kumar and Smt. Leelee wife of Hargyan, in which,
after recording of the evidence, the trial Court convicted them vide
judgment and order dated 18.07.2014. The present accused-
appellant was absconding and was arrested on 08.09.2014 and
thereafter, a supplementary charge-sheet was also filed against
him on 18.11.2014. The case was committed to the Court of
Sessions. Trial Court framed charges against the accused-
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appellant on 09.03.2017. He denied the charges levelled against
him and sought trial, upon which, as many as 23 witnesses were
examined and 45 documents were exhibited on behalf of the
prosecution. Explanation of the accused appellant was recorded
under Section 313 of Criminal Procedure Code (hereinafter
referred to as "the Cr.P.C."). After hearing the arguments of both
the parties, the learned trial Court has convicted and sentenced
the accused-appellant as mentioned herein-above.
4. It is contended by the learned counsel appearing on behalf of
the accused-appellant that the case of the appellant is akin to that
of the other co-accused, who were convicted and sentenced vide
judgment and sentence dated 18.07.2014. It is also contended
that in D.B. Criminal Appeal No.847/2014 titled as 'Hargyan & Ors.
Versus The State of Rajasthan through PP' filed by the other co-
accused of this case i.e. Hargyan, Mahesh Kumar, Mangal Singh
and Smt. Leelee, the Division Bench of this Court has acquitted
accused - Smt. Leelee and Mangal Singh for offence under Section
148 and 302 of IPC, but had altered the sentence of accused -
Hargyan and Mahesh Kumar to the offence under Section 304
Part-II of IPC and had sentenced them to undergo 8 years
rigorous imprisonment with fine of Rs.5,000/-, in case of default
to pay fine, to further undergo 3 months simple imprisonment.
The Division Bench has acquitted accused-Mahesh Kumar and
Hargyan for offence under Section 148 of IPC.
5. It is contended that the case of the accused-appellant is akin
to that of Hargyan and Mahesh Kumar. The conviction of accused-
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appellant for the offence under Sections 302 & 148 of IPC should
be set aside and his conviction should be altered for the offence
under Section 304 Part-II of IPC.
6. Learned Additional Government Advocate appearing for the
State has not disputed the fact that the case of accused-appellant
is akin to that of Hargyan and Mahesh Kumar.
7. We have considered the submissions and have carefully gone
through the material on record.
8. Admittedly, as per the FIR, allegation against Hargyan was of
carrying a pharsi and against present appellant-Layakram and
Mahesh were carrying axe. As per the judgment of the Division
Bench, the incident took place on the spur of the moment. The
case of the accused-appellant is akin to that of Hargyan, who was
carrying pharsi. The allegation against present accused-appellant
is of causing injury on the face of the deceased. The injury, which
was assigned to the present appellant, is incised wound over the
face starting from right side of chin going below the right ear with
size 14×3 cm and is bony deep, which resulted into fracture of
underlying right mandible bone.
9. As far as the evidence is concerned, Veer Singh (PW-2), son
of the deceased, has stated that when the accused side was
digging the foundation, the dispute started. Hargyan caused injury
with a lathi on the jaw; Layakram, the present accused-appellant,
gave a blow with an axe on the right side of the jaw of the
deceased and Mahesh Kumar gave a blow with an axe on the head
and the deceased died due to the above injuries. Santosh (PW-3),
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daughter of the deceased, has also deposed that the dispute
started when the accused side was digging the foundation.
Hargyan and Layakram gave a blow on the neck of the deceased.
Suraj (PW-6) has also deposed that the accused side were trying
to take possession of the disputed land by digging the foundation.
He has admitted that at the disputed place, they have 1/4 th share
and the accused are also having their share. Thus, from perusal of
the evidence, it is evident that the dispute took place on the spur
of the moment when the deceased stopped the accused side from
digging the foundation and role of the present accused-appellant
is akin to that of other co-accused.
10. Since the incident took place on the spur of moment and the
case of the accused-appellant is akin to that of Hargyan, we deem
it proper to partly allow the present appeal. Consequently, the
appeal filed by the accused-appellant is partly allowed; his
conviction under Sections 302 & 148 of IPC is set aside and
instead, he is convicted for offence under Section 304 Part-II of
IPC and sentenced to 8 years rigorous imprisonment and a fine of
Rs.5,000/-, in case of default of payment of fine, to further
undergo 3 months simple imprisonment.
11. Appellant is directed to furnish personal bond in the sum of
Rs.50,000/- and a surety bond in the like amount in accordance
with Section 437-A of Cr.P.C. before the Registrar (Judicial) within
two weeks from the date of release to the effect that in the event
of filing of Special Leave Petition against this judgment or on grant
of leave, the appellant, on receipt of notice thereof, shall appear
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before the Hon'ble Apex Court. The bail bond will be effective for a
period of six months.
12. Record of the learned Trial Court be sent forthwith.
(BHUWAN GOYAL),J (PANKAJ BHANDARI),J
SUNIL SOLANKI /PS
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