Rajasthan High Court
Shibbaram S/O Shri Budharam B/C ... vs State Of Rajasthan ... on 31 August, 2023
Bench: Pankaj Bhandari, Bhuwan Goyal
[2023:RJ-JP:20005-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 65/2020
1. Shibbaram S/o Shri Budharam, Aged About 55 Years, R/o
Dehlawas, Police Station Sadar, Distt. Alwar Raj.
(Presently Lodged In Distt. Jail At Alwar)
2. Sheeshram S/o Shri Mohanlal, Aged About 28 Years, R/o
Reengaspuri, Police Station Sadar, Distt. Alwar Raj.
(Presently Lodged In Distt. Jail At Alwar)
3. Patram S/o Shri Chandarram, Aged About 34 Years, R/o
Chorotiyo Ki Dhani, Dehlawas Police Station Sadar, Distt.
Alwar Raj. (Presently Lodged In Distt. Jail At Alwar)
4. Ruparam S/o Shri Budharam, Aged About 50 Years, R/o
Dehlawas, Police Station Sadar, Distt. Alwar Raj.
(Presently Lodged In Distt. Jail At Alwar)
5. Sukkan S/o Shri Shibbaram, Aged About 28 Years, R/o
Dehlawas, Police Station Sadar, Distt. Alwar Raj.
(Presently Lodged In Distt. Jail At Alwar)
6. Chetram S/o Shri Chandar, Aged About 24 Years, R/o
Dehlawas Police Station Sadar, Distt. Alwar Raj.
(Presently Lodged In Distt. Jail At Alwar)
7. Bhagwan S/o Shri Mohanlal, Aged About 35 Years, R/o
Ringaspuri, Police Station Sadar, Distt. Alwar Raj.
(Presently Lodged In Distt. Jail At Alwar)
----Appellants
Versus
State Of Rajasthan, Through P.P.
----Respondent
For Appellant(s) : Mr. Suresh Kumar Sahni
Mr. Ram Mohan Sharma
Mr. M.S. Solanki
For State(s) : Mr. Javed Choudhary, Addl.G.A.
For Complainant(s) : Mr. Sajid Ali
Mr. Dinesh Chand Sharma
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE BHUWAN GOYAL
Judgment
[2023:RJ-JP:20005-DB] (2 of 9) [CRLAD-65/2020]
RESERVED ON :: 22/08/2023
PRONOUNCED ON :: 31/08/2023
(Per Hon'ble Pankaj Bhandari, J.)
1. The appellants have preferred the present Criminal Appeal
aggrieved by the judgment of conviction and order of sentence
dated 16.12.2019 passed by the Special Judge, SC/ST (Prevention
of Atrocities) Cases, Alwar, Rajasthan, whereby the accused
appellants have been convicted for the offences under Sections
148, 341, 323/149, 325/149, 326/149, 307/149 and 302/149 of
the Indian Penal Code (hereinafter referred to as "the IPC") and
have been sentenced as under:-
(i) Under Section 148 of IPC - 3 years rigorous
imprisonment with a fine of Rs.1,000/- and in case of default
of payment of fine, to further undergo 1 month simple
imprisonment.
(ii) Under Section 341 of IPC- 1 month rigorous
imprisonment with a fine of Rs.500/- and in case of default
of payment of fine, to further undergo 7 days simple
imprisonment.
(iii) Under Section 323/149 of IPC- 1 year rigorous
imprisonment with a fine of Rs.500/- and in default of
default of payment of fine, to further undergo 1 month
simple imprisonment.
(iv) Under Section 325/149 of IPC - 5 years rigorous
imprisonment with a fine of Rs.1,000/- and in default of
default of payment of fine, to further undergo 2 months
simple imprisonment.
(v) Under Section 326/149 of IPC - 5 years rigorous
imprisonment with a fine of Rs.1,000/- and in default of
[2023:RJ-JP:20005-DB] (3 of 9) [CRLAD-65/2020]
default of payment of fine, to further undergo 2 months
simple imprisonment.
(vi) Under Section 307/149 of IPC - 7 years rigorous
imprisonment with a fine of Rs.1,000/- and in default of
default of payment of fine, to further undergo 6 months
simple imprisonment.
(vii) Under Section 302/149 of IPC - Life imprisonment and
1 month rigorous imprisonment with a fine of Rs.1,000/- and
in default of default of payment of fine, to further undergo 6
months simple imprisonment.
2. Succinctly stated the facts of the case are that on
31.10.2010, complainant - Rajendra (PW-6) filed a written report
(Exhibit-P36) at Sadar Police Station, Alwar. On the said report,
police registered FIR No.476/2010 (Exhibit-P62) on the same day.
The police, after due investigation, filed charge-sheet against the
present accused appellants for the offences under Sections 147,
148, 149, 341, 323, 325, 326, 307 and 302 of IPC. The case was
committed for the trial and the charges were framed against the
accused appellants. The appellants denied all the charges and
sought trial. The prosecution examined as many as 24 witnesses
and exhibited 86 documents. Explanations of the accused were
recorded under Section 313 of the Criminal Procedure Code
(hereinafter referred to as "the Cr.P.C.") wherein they have stated
that they have been falsely implicated in the case. In defence, 6
documents were got exhibited. The learned trial Court after
hearing the arguments of both the sides, has convicted the
accused appellants for the offences as stated herein-above,
[2023:RJ-JP:20005-DB] (4 of 9) [CRLAD-65/2020]
aggrieved by which, the present criminal appeal has been filed
before this Court.
3. It is contended by the counsel appearing for the accused
appellants that in the initial report, which was lodged, 16 persons
were named as assailants, however, the police submitted the
charge-sheet only against 7 persons, which goes to show that
there was over implication. It is also contended that the
complainant - Rajendra (PW-6) was not an eye-witness, as he was
not injured and it appears that some legal advise was sought
before drafting the complaint. It is further contended that Babu
Lal (PW-13), who is said to be an eyewitness, is a planted witness.
He has also not sustained any injury. It is argued that none of the
accused have been charged for the offence under the Arms Act
and it is not established that as to who caused the death of
deceased Kanhaiya. It is also argued that all the eye-witnesses
have stated that Shibba is the person, who fired at the deceased.
In that case, except Shibba, other appellants should not have
been convicted for the offence under Section 302/149 of IPC.
4. It is contended that there is no report of the doctor that the
pellet wounds sustained by the injured, were sufficient in the
ordinary course of nature to cause death, hence, conviction under
Section 307/149 of IPC cannot be sustained. It is also contended
that there was indiscriminate firing, thus it cannot be said that
accused intended to murder deceased Kanhaiya. It is further
contended that there is no armorer report to suggest that the
firearms, which were recovered, were used for commission of the
said offence. It is also contended that the site-plan prepared by
the Investigating Officer is hit by Section 164 of the Cr.P.C., as it
[2023:RJ-JP:20005-DB] (5 of 9) [CRLAD-65/2020]
was prepared at the instance of the witnesses. It is contended that
the witnesses have given a graphic description of the incident, as
to who fired at whom, which is not possible, if there is
indiscriminate firing. It is also contended that FSL Report (Exhibit-
P84 to P86) is inconclusive, thus it does not connect the accused
appellants with the alleged offence. Learned counsel for the
appellants has, therefore, submitted that the present appeal may
be allowed and the appellants may be acquitted of charges
levelled against them.
5. On the other hand, learned counsel appearing for the
complainant and the learned Additional Government Advocate
have opposed the appeal. It is contended that there are 5 injured
persons, namely, Chetram (PW-8), Moti Lal (PW-9), Netram (PW-
10), Phool Singh (PW-12) and Mohan Lal (PW-14), out of which,
Phool Singh (PW-12), Moti Lal (PW-9), Mohan Lal (PW-14) and
Chetram (PW-8) have received firearm injuries, whereas Netram
(PW-10) has only received blunt injuries. Deceased - Kanhaiya
received punctured lacerated wounds on left side of the neck (both
entry and exit wounds) and lacerated wound on chest. Pellets
were also recovered from left thorax cavity and lungs. It is also
contended that all the accused persons came armed with firearms,
lathis and axes. They constituted an unlawful assembly with the
common intention to commit the offence, hence the offence under
Section 149 of IPC would come into play and the learned trial
Court has not committed any error in convicting the accused
appellants with the aid of Section 149 of IPC.
6. It is contended that it has to be inferred by the Court that if
firing is done and pellet injuries are caused, offence under Section
[2023:RJ-JP:20005-DB] (6 of 9) [CRLAD-65/2020]
307 of IPC is made out and it is not mandatory to have a report of
the doctor that certain injuries were dangerous to life for
convicting an accused for offence under Section 307 of IPC. It is
also contended that the injured witnesses, who have received the
injuries, cannot be disbelieved merely because there was over
implication or that they gave a graphic narration of the incident. It
is further contended that merely because the accused were not
charged for offence under the Arms Act, it cannot be said that
alleged offences are not made out. It is also contended that since
all the accused constituting an unlawful assembly, came armed
with firearms, lathis and axes, they had common intention and all
are responsible for the act of others and thus, the conviction with
the aid of Section 149 of IPC deserves to be upheld.
7. Learned Additional Government Advocate, in support of his
submissions, has placed reliance on Bhole & Ors. Versus The State
of Madhya Pradesh: Criminal Appeal Nos.889-890 of 2012
decided by the Apex Court on 16.08.2023.
8. We have considered the submissions made by the learned
counsel for the parties and have carefully gone through the
material on record.
9. The fact that Kanhaiya expired is not disputed as also the
fact that Chetram (PW-8) whose injury report is Exhibit-P53, Moti
Lal (PW-9) whose injury report is Exhibit-P52, Phool Singh (PW-
12) whose injury report is Exhibit-P41 and Mohan Lal (PW-14)
whose injury report is Exhibit-P42 have sustained pellet and sharp
injuries.
10. On scanning through the evidence, Chetram (PW-8), who is
an injured witness, has stated that on 31.10.2010 at around 7:30
[2023:RJ-JP:20005-DB] (7 of 9) [CRLAD-65/2020]
am, he along with Moti Lal, Netram, Mohan Lal, Kanhaiya, Phool
Singh, Babulal, Rajendra and Radhey Shyam were sitting in the
hut near the well and were preparing tea, when the accused
appellants constituting an unlawful assembly, came and started
firing. This witness has also stated that Patram fired at him which
hit his head and left shoulder. One Chetram from the accused side,
has also fired at him and the pellet hit him at his calf muscles.
This witness has also stated that after receiving the injuries, he
became unconscious. Moti Lal (PW-9) has also given evidence akin
to that of Chetram (PW-8). He has also stated that all the accused
started firing. Sukhram fired at him and he received injury on his
stomach and chest. This witness has further stated that after
receiving the injuries, he became unconscious. Netram (PW-10)
has also deposed that the incident took place on 31.10.2010 at
7:30 am when they were making tea at their hut situated in the
farm at Johada. He has also stated that the accused came and
started firing.
11. Phool Singh (PW-12), who has received punctured lacerated
wound on forehead and blackened area due to blood clot caused
due to firearms and he has also received an incised wound caused
by sharp weapon, which is grievous in nature, has deposed that
on 31.10.2010 at 7:30 am, they were sitting in a hut near the wall
of their farm at Johada, when the accused side armed with
weapon, came and started firing. He has also deposed that
Shibba, Sukkan and Bhagwan fired at Kanhaiya. He has also
stated that Bhagwan fired, which hit on his leg. Sheeshram also
fired, which caused injuries near his eye and Brajlal gave a blow
with pharsi on his leg, after which he became unconscious. Mohan
[2023:RJ-JP:20005-DB] (8 of 9) [CRLAD-65/2020]
Lal (PW-14), who has received 26 punctured lacerated wounds on
abdomen and chest and 8 punctured lacerated wounds on upper
arm and a scratch wound on upper lip, has also deposed about the
alleged incident and his evidence is akin to the evidence of other
injured witnesses. He has stated that Sukan fired at his back.
Sukhram also fired at him. He has further stated that there was
indiscriminate firing, as a result of which, deceased - Kanhaiya
expired and other injured persons received gun-shot injuries.
12. From the above evidence, it is evident that all the accused
persons constituted an unlawful assembly and armed with
firearms, lathis and axes, attacked the complainant side. Thus,
offence under Section 148 of IPC is made out against the accused
appellants. It is also evident that the accused, who were carrying
the firearms, started indiscriminate firing and as to who fired at
whom, cannot be ascertained for the very reason that they were
all armed with firearms and were firing at the same time. The
learned trial Court has rightly come to the conclusion that the
accused appellants with the common intention to cause death,
attacked the complainant side and have rightly convicted all the
accused appellants for offence under Section 302/149 of IPC.
13. The contention of the learned counsel for the accused
appellants that the accused appellants should be held responsible
individually for their acts cannot be sustained, for the very reason
that all the accused with common intention had constituted an
unlawful assembly and attacked the complainant side wherein,
one person expired due to the gun-shot injuries and five other
persons have received sharp weapon injuries and gun-shot
injuries. All the witnesses have shown the presence of the accused
[2023:RJ-JP:20005-DB] (9 of 9) [CRLAD-65/2020]
appellants at the place of incident and have specifically levelled
allegations with regard to the firing and causing injuries. Learned
counsel for the appellants could not point out any flaw in the
evidence, so as to disbelieve the same. Hence, the conviction of
the accused appellants for the offence under Sections 148, 341,
323/149, 325/149, 326/149, 307/149 and 302/149 of IPC was
proper and based on the evidence available on record.
14. Thus, we do not find any illegality in the impugned judgment
of conviction and the order of sentence passed by the learned trial
Court.
15. The appeal, being devoid of any merit is, accordingly,
dismissed. The judgment and sentence dated 16.12.2019 passed
by the Trial Court is upheld. The appellants - Sukkan, Chetram,
Bhagwan, Sheeshram & Patram, who were released on bail during
the pendency of the case, their bail bonds furnished stand
cancelled and the learned trial Court is directed to take necessary
steps for taking the accused appellant(s) in custody for serving
the remaining sentence.
(BHUWAN GOYAL),J (PANKAJ BHANDARI),J
SUNIL SOLANKI /PS
Powered by TCPDF (www.tcpdf.org)
