Het Ram And Anr vs State (2023:Rj-Jd:25853)
2023 Latest Caselaw 5795 Raj

[2023:RJ-JD:25853]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                     S.B. Criminal Appeal No. 317/1997

1. Het Ram S/o Hari Ram;
2. Bansi Lal S/o Hari Ram;
Both B/c Bishnoi, R/o Kakra, At present Jeewan Nath ji ki
Bagichi, Bikaner.


                                                                      ----Appellants

                                       Versus

State Of Rajasthan

                                                                    ----Respondent

                                  Connected With

                     S.B. Criminal Appeal No. 365/1997

1. Gordhan S/o Hari Ram
2. Bhagwana Ram S/o Hari Ram
Both B/c Bishnoi, R/o Kakra, At present Jeewan Nath ji ki
Bagichi, Bikaner.

                                                                      ----Appellants

                                       Versus

1. State Of Rajasthan
2. Bansi Lal S/o Hari Ram Vishnoi,
3. Ram Chandra S/o Bansi Lal Both B/c Bishnoi, R/o Kakra, At
present Jeewan Nath ji ki Bagichi, Bikaner.

                                                                    ----Respondents


For Appellant(s)              :    Mr. S.K. Verma
For Respondent(s)             :    Mr. Mukhtiyar Khan, PP



                HON'BLE MR. JUSTICE FARJAND ALI

                                    Judgment

DATE OF JUDGMENT                           :::                       11/08/2023
BY THE COURT:-

[2023:RJ-JD:25853] (2 of 14) [CRLA-317/1997]

1. The instant Criminal Appeal has been filed by the accused-

appellants Het Ram and Ram Chandra against the judgment of

conviction dated 28.06.1997 passed by the learned Additional

Sessions Judge No.1, Bikaner in Sessions Case No.13/1993 and

they were sentenced as below:-

Offence for which Substantive Fine and default Name of the convicted sentence sentence accused Section 307 IPC Five years' Fine of Rs.1,000/- and Het Ram rigorous in default of payment imprisonment of fine to further undergo six months' simple imprisonment;

Under Section 325 of the IPC : Extended benefit under Bansi Lal Section 4 of the Probation of Offenders Act and ordered to furnish a bond of Rs.5,000/- to the satisfaction of the learned trial Court and to keep good behaviour and peace for a period of one year and also ordered to pay Rs.1,000/- each to Govardhan and Baluram.

2. Bereft of elaborate details, the facts necessary for disposal

would be that on 29.05.1990, at about 1:05 p.m. an FIR

No.125/1990 (Ex.P/7) got lodged at the Police Station Naya

Shahar, Bikaner at the behest of P.W. 4 Bhagwana Ram Bishnoi,

R/o Jeevan nathji ki bagechi, Bikaner alleging therein that they

are six brothers out of which he, Govardhan and Ramgopal are

real brothers and Hetram, Bansi and Baluram are their step

brothers and all were living separately. There was a dispute

regarding land between them; one day prior to the incident, due

to animosity they gave beatings to wife of Balu Ram and today at

around 12:30 p.m. when all the three brothers were at their home

with father, at that time Balu Ram and he heard regarding scuffle

between the brothers and rushed to the place of occurrence where

he found that Ram Chandra was giving beatings to victim

Govardhan with Saila (an iron rod) and when the witnesses

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reached at the spot it was told to them that the appellant Het Ram

inflicted a blow through a sharp weapon in the abdomen of the

victim Govardhan. Upon this report, aforesaid FIR came to be

registered at the Police Station Naya Shahar, Bikaner under

Sections 307, 324, 323 IPC. After investigation, accused Het Ram,

Bansi Lal and one Ram Chandra were charge sheeted for the

offence under Sections 326, 307, 452, 323/34 of the IPC. After a

full-fledged trial, the learned trial Court acquitted the accused

Ram Chandra but convicted and sentenced the accused Het Ram

and Bansi Lal as mentioned above.

3. Heard learned counsel for the appellants as well as learned

Public Prosecutor for the State and have gone through the

impugned judgment as well as the record of the case.

4. What is emanating from the record that the appellants and

the victim family are the members are the descendants of one

family. There was a discord between the parties with regard to

apportionment of the land. There was no per-meditation, pre-

concernt or pre-plan to kill the victim Govardhan rather, the

dispute arose in a spur of moment in which both the parties have

sustained injuries.

5. Dr. R.K. Gehlot, P.W. 1, who examined the victim has also

admitted the fact that the accused-appellant Balu Ram had also

received five injuries. The report of which is tendered into

evidence and marked as Ex.P/1. The MLC of accused Ram Chandra

is exhibited as Ex.D/4 and accused Het Ram also received injuries.

The Medical Jurist P.W. 1 Dr. R.K. Gehlot deposed before the Court

that he examined the victim Goverardhan and Balu Ram whose

memos were exhibited as Ex.P/1 and Ex.P/2. Ex.P/4 is the MLC

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report of victim Govardhan as per which the injury No.1 was a

stab wound measuring 2.0cmX0.8cmX9cm depth, which was

found on the lumber area of left abdomen. He admitted in cross

examination that whatever he noted in Ex.P/5, were based upon

the surgery notes of the victim Goverdan. No bony injury was

found on the person of Goverdhan and the opinion of the P.W. 1

Dr. Gehlot was based upon surgery notes. However, neither the

doctor who conducted surgery was made a witness nor any other

person appeared on his behalf to prove the contents of the

surgery note. Thus, the primary evidence which has been made

basis to the opinion of Doctor regarding the nature of injury has

not been produced and in absence whereof the finding regarding

nature and gravity of the injuries would not be safe to held as true

on the basis of statement of P.W. 1 Dr. R.K. Gehlot, Medical Jurist

only.

6. Coming to the eye-witness account, statements of P.W. 4

Bhagwana Ram, P.W. 5 Mst. Phuli, P.W. 6 Balu Ram, Kana Ram

P.W. 8 as also the statement of victim P.W. 3 Govardhan have been

minutely scrutinized by this Court. Even, P.W. 3 Govardhan

admitted in his cross-examination that there were no inimical

relationship between him and the accused-persons prior to the

incident and as such it was not of high degree.

7. While dealing with the issue of maintainability of charge

under Section 307 IPC, this Court vide order dated 10.05.2023

while deciding S.B. Criminal Revision petition No.128/2022

(Samane Khan & Ors. Vs. State & Ors.) has elaborated and

considered the matter regarding imposition of charge under

Section 307 iPC and inflicting injuries without an intention to kill

[2023:RJ-JD:25853] (5 of 14) [CRLA-317/1997]

the victim. Relevant part of the said judgment is reproduced as

under:-

6. After careful scanning of the material available on record, it is observed by this Court that it is an admitted fact situation that there was no previous animosity between the parties though, there may have some discord between them but the same was not so serious in nature for that the accused-petitioners would think to commit murder of the victims. From perusal of the circumstances of the case, it can be presumed at the best that the petitioners wanted to hurt the victims or to chastise them or to harm them physically or frighten them but from no stretch of imagination, it can be inferred that the intent of the accused-petitioners was to kill the victims and for that purpose they made an attempt upon them.

7. The Penal law has defined and categorized different acts of the accused with distinct quantum of punishment. Voluntarily causing simple hurt; causing voluntarily simple hurt by using a dangerous weapon or means; voluntarily causing grievous hurt; which has further been clarified by a different provision under Section 326 of the IPC with the definition of voluntarily causing grievous hurt by a dangerous weapon and means. Causing or receiving injury is not an integral part of constituting an offence under the first Clause of Section 307 of the IPC which reads as under:-

"Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be

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guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;"

8. The plain reading of the first limb of Section 307 of the IPC makes it abundantly clear that receiving injury in the course of attempt to kill the victim, is not a condition precedent in this clause. The second Clause of this Section begins with the word which are reproduced as under:-

"if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned".

9. The main difference between the first and second Clause is with regard to quantum of punishment only, which is categorized as "if in the course of making an attempt to murder, any injury is received by the victim then, the punishment would be graver than to the first clause". Here, it is also pertinent to mention that no particular kind and nature of injury has been described even in the second limb of Section 307 IPC. It may be a simple or grievous or life endangering injury, it matters not. The only fact would be needed for the second part of Section 307 IPC is that in the course of attempt to kill, an injury is received by the victim.

10. Having element of an intent to bring the matter within the ambit of Section 307 of the IPC is a condition precedent. Intention is the state of mind of an offender and there could be no physical evidence which can be produced as a thing, object or fact to establish the same in a

[2023:RJ-JD:25853] (7 of 14) [CRLA-317/1997]

concrete manner. It has to be inferred from the circumjacent circumstances of the case and the evidence available on record. Intention can be adduced from the act itself as well as from consequences of the fact. Some of the prominent aspects that may be taken into consideration to draw an inference regarding the mental state of the accused are as under:-

(i) the number of injuries;

(ii) the nature of injuries received by the victim;

(iii) the kind of weapon used by the accused for inflicting injury;

(iv) the part of body which the accused chosen to inflict the injury;

(v) the other surrounding circumstances like time and place of incident whether it was crime place belonged to the accused or it belonged to the victim or a random public place;

(vi) previous animosity between the accused and victim which must be of such a degree which would indicate itself strong reason or motive of the accused so as to show the intent to cause death of the victim. It should not be just a discord acrimony or bitter relationship or strife of an ordinary nature or of common petulance.

(vii) the position of the accused and the victim at the place of crime; if the accused is in dominating position or rather more in number than to the victim; the victim is in helpless or hapless condition; not hopeful of being rescued or getting assistance from anyone and still if the accused does not take undue advantage of his position by not inflicting more injuries or by not

[2023:RJ-JD:25853] (8 of 14) [CRLA-317/1997]

using much force upon the victim, is a strong circumstance to draw an inference regarding the criminal intent of the accused. Not taking undue advantage of his dominating position is a significant sign to show the intent.

11. There may be some other factors which may be taken into consideration for the purpose of drawing an inference regarding intent of the accused so as to know whether the accused wanted to kill/murder the victim or he only wanted to harm and cause some simple or grievous injuries to the victim.

12. Though, a straight jacket formula cannot be made as determinable factor and the above mentioned factors are illustrative not exhaustive.

13. While examining the instant case, in light of the discussion made herein above, it would emanate from the record that the accused were eight in numbers and all were allegedly armed with iron rod and ropes. The victims Ishan Khan, Fatan Khan and Yusuf Khan were bashed up by the accused.

14. A perusal of the injury report of victim No.1 Ishan Khan revealing that he received one injury on his right forearm with no superficial appearances, therefore, the nature of injury kept reserved. The injury No.2 measuring 3 cm X 1 cm was found on his head. Both the injuries were caused by blunt object. The report was prepared on 01.07.2022 by the Medical Officer. The nature of both the injuries were kept reserved until radiological examination. On the very same day, the radiological report/X-ray report was prepared by the radiologist, as per which, the injury on

[2023:RJ-JD:25853] (9 of 14) [CRLA-317/1997]

forearm was found to be grievous because of bony injury on radius or ulna bone. After radiological examination, The injury No.2 was not found to be a bony injury thus, the head injury was opined to be simple in nature.

15. The victim Fatan Khan received two injuries; one on his head and another on his forearm. The head injury was opined to be simple in nature because as per X-ray plate, no bony injury was noticed. The injury on hand was found to be grievous in nature because of fracture of radius and ulna bone. Another victim Yusuf Khan received a negligible injury which was simple in nature and was caused on his index finger.

16. It is noteworthy that the radiological examination got done on the very same day i.e. 01.07.2022 and the doctors have given opinion over this.

17. Thus, looking to the determinable factors mentioned in the preceding paras, if the case is examined further, it is revealing that the accused persons were eight in numbers and all were allegedly having iron rod in their hands still they did not opt or chose to inflict more injuries to the victim. No repetition of injuries was made by them even it can be assumed that all eight accused persons did not participated in causing injuries to the victims as the total injuries caused to victims are four in numbers i.e. two to Fatan Khan and two to Ishan Khan and one simple hurt to Yunus. Nobody was there to restrict or restrain the assailants to apply more force or to inflict more injuries. Thus, a safe inference can easily be drawn that the accused persons were not

[2023:RJ-JD:25853] (10 of 14) [CRLA-317/1997]

having any intent to murder the victims rather the assault was only made by them for causing some hurt to the victims only.

8. When the facts and circumstances of the case are scrutinized

and appreciated in view of the preposition of law, enunciated

above; it can be inferred that neither the injuries received by the

victim nor the circumstances of the case bringing; the case within

the ambit of Section 307 of the IPC. It was imperative upon the

prosecution to produce the doctor who conducted surgery of the

victim Govardhan and examined injury No.1 so as to form an

opinion with regard to its being dangerous to life or grievous in

nature, failing which, no definite opinion with regard to gravity of

the injury can be formed. The opinion of P.W 1 Dr.R.K. Gehlot is

like a secondary evidence based on surgery notes which though

tendered into evidence, however, the contents were not proved by

the person who prepared the notes.

9. Thus, from the circumstances of the case as well as looking

to the injuries received by the victim Govardhan, it is observed

that the conviction of the appellant Het Ram under Section 307

IPC is not sustainable and looking to the injuries received by the

injured Govardhan, his medical report Ex.P/2 and the other

circumstances of the case, this Court is of the opinion that the

offence would not travel beyond the scope and ambit of Section

324 IPC and thus, it is deemed appropriate to convert the

conviction of appellant Het Ram into one from Section 307 to

Section 324 of the IPC. As far as the case of appellant Balu ram is

concerned, I find no illegality or incorrectness with regard to his

[2023:RJ-JD:25853] (11 of 14) [CRLA-317/1997]

conviction under Section 325 IPC and thus, the conviction of both

the appellants is maintained.

10. As far as the question regarding sentence of accused

appellant Bansi Lal is concerned, he has been extended the benefit

of probation in which, I find no reason to interfere in a well

reasoned decision of learned trial Court. As far as the question of

sentence with regard to appellant Het Ram is concerned, his

conviction is found under Section 324 of the IPC. The victim is

none other than his real brother. There was no previous animosity

between them. It is also admitted that the appellant Het Ram has

also sustained injuries on his body in the same incident; he has no

criminal antecedent and never tried to commit any offence except

the present one. The incident took place in the year 1990 and

now almost 33 years have elapsed. He is facing rigor of trial for a

long 33 years and whereafter he waited for the course of trial for a

long and had to undergo myrate difficulties in it. At the time of

incident, he was a young man but over the period; he is suffering

from several diseases as the learned counsel states that he has

now become old. It is stated at bar that except the above

incident, no subsequent incident of like nature has happened and

now there is peace amongst both the parties, after 33 years of the

incident, sending the accused back to jail would not be a just

decision. The appellant Het Ram remained in custody during trial

and after the judgment of conviction and remained some time

post conviction. The accused appellant Banshi Lal has also been

given the benefit of probation by the learned trial Court.

[2023:RJ-JD:25853] (12 of 14) [CRLA-317/1997]

11. The fine amount of Rs.1,000/- has been deposited by the

accused Het Ram with the learned trial Court. The above are the

mitigating circumstances, it can be taken into account for reducing

the sentence. In view of the reformative approach, sending the

accused behind the bars may re-ignite the buried dispute. Thus,

considering all the facts and circumstances of the case, it is

deemed appropriate to reduce the sentence to the period he has

undergone till date, but the amount of fine is deemed appropriate

to be enhanced in view of the injury received by victim

Govardhan.

12. Consequently, the appeal deserves to be and is hereby

accepted in part. Conviction of the appellant Het Ram as

recorded by the trial court for the offences punishable under

Section 307 IPC is hereby quashed and set aside, however, he is

convicted for the offence punishable under Section 324 IPC. He

has suffered substantive imprisonment for a considerable period

during trial and post conviction. The incident took place in the

year 1990 and more than 33 years have elapsed since then.

Hence, it is felt that it would be totally unjustified to send him

back to the prison at this belated stage. Consequently, the

substantive sentence awarded to the appellant Het Ram under

Section 324 IPC is reduced to the period already undergone by

him. He is on bail and so he need not to surrender and it is

ordered that the appellant Het Ram shall deposit a sum of

Rs.25,000/- amount of fine within next 90 days from the date of

passing of this order before the learned trial Court and upon

[2023:RJ-JD:25853] (13 of 14) [CRLA-317/1997]

deposition of the said enhanced amount, the same shall be

disbursed in favour of the victim Govardhan.

13. However, keeping in view the provisions of Section 437-A

CrPC, the appellants shall furnish a personal bond in the sum of

Rs.40,000/- and a surety bond in the like amount before the

learned trial court, which shall be effective for a period of six

months to the effect that in the event of filing of a Special Leave

Petition against the present judgment, on receipt of notice thereof,

the appellant shall appear before the Supreme Court.

14. The appeal is partly allowed in the above terms. The record

be returned to the trial court.

CRIMINAL APPEAL No.365/1997

15. This appeal has been filed by the victim Govardhan

aggrieved by the judgment dated 28.06.1997 passed by the

learned Additional Sessions Judge No.1, Bikaner in Sessions Case

No.13/1993 whereby the learned Judge acquitted the accused

Ram Chandra and accused Babu Lal though convicted under

Section 325 of the IPC but a benefit of probation has been

extended to him and convicted the accused Het Ram under

Section 307 of the IPC.

16. I have gone through the record of the case and the

impugned judgment as well as the pleadings raised on his behalf.

17. After minutely going through the findings arrived at by the

learned Sessions Judge after critical analysis of the evidence

brought on record and the order passed on sentence, and in view

[2023:RJ-JD:25853] (14 of 14) [CRLA-317/1997]

of the judgment passed in Criminal Appeal No.317/1997 I find

nothing which may persuade this Court to interfere in the

judgment impugned that too after thirty three years of the

incident.

18 Accordingly, there is no force in the instant Criminal Appeal

and the same is hereby dismissed.

(FARJAND ALI),J 77-Mamta/-

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