Unkar And Ors vs State
2023 Latest Caselaw 6378 Raj/2

[2023:RJ-JP:29886-DB]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                     D.B. Criminal Appeal No. 85/1989

 1. Unkar son of Kana (died)
 2. Nathulal son of Rodu
 Both are residents of Village Banetha, Police Station Uniara,
 District Tonk (At present confined in Central Jail, Jaipur).
 3. Kalu son of Bhajju @ Bajranga
 4. Laddu son of Panchu
 5. Rodu son of Kana (died)
 All are residents of Village Banetha, Police Station Uniara,
 District Tonk.
                                                            ----Accused-Appellants
                                         Versus
 The State of Rajasthan through P.P.
                                                                     ----Respondent

For Appellant(s) : Mr. M.C. Jain, Adv. with Mr. Ankit Jain and Mr. Rajesh Kumar Sain For Respondent(s) : Mr. Javed Choudhary, Addl.G.A.

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BHUWAN GOYAL

Judgment

RESERVED ON :: 11/10/2023 PRONOUNCED ON :: 02/11/2023

(Per - Hon'ble Pankaj Bhandari, J.)

1. The accused appellants have preferred the instant appeal

aggrieved by the judgment of conviction and sentence dated

07.03.1989 passed by the learned Sessions Judge, Tonk, in

Sessions Case No.50/1986 arising out of FIR No.97/1986, by

which, he convicted and sentenced the accused appellants as

under:-

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Unkar:-Under Section 302/34 IPC - Imprisonment for life and under Section 307/34 IPC - 3 years rigorous imprisonment and a fine of Rs.1000/- and in default of payment of fine, 3 months further rigorous imprisonment. Nathu Lal:- Under Section 302/34 IPC - Imprisonment for life.

Kalu:- Under Section 307/34 IPC - 3 years rigorous imprisonment and a fine of Rs.1000/- and in default of fine, 3 months further rigorous imprisonment.

Laddu:- Under Section 307/34 IPC - 3 years rigorous imprisonment and a fine of Rs.1000/- and in default of payment of fine, 3 months further rigorous imprisonment. Rodu:- Under Section 307/34 IPC - 3 years rigorous imprisonment and a fine of Rs.1000/- and in default of payment of fine, 3 months further rigorous imprisonment. Section 323 IPC - 1 month rigorous imprisonment. All the sentences were directed to run concurrently.

2. During the pendency of the present appeal, appellants -

Unkar and Rodu expired and the appeal stands abated qua

appellants - Unkar and Rodu. The present appeal is being heard

and decided with regard to appellants - Nathulal, Kalu and Laddu.

3. Succinctly stated the facts of the case are that on

15.09.1986 at 11:30 pm, complainant - Ramkaran son of Prabhu

(PW-1) gave a parchabayan (Exhibit-P1) to the police. On basis of

the said parchabayan, police registered FIR No.97/1986 (Exhibit-

P42) on 16.09.1986 at 9:00 am at Police Station Uniara, District

Tonk for offences under Sections 147, 148, 149, 307, 323 and 324

of IPC against the accused appellants. The police, after due

investigation, filed charge-sheet against the accused appellants

and other co-accused. The case was committed for trial and the

Trial Court, after hearing the charge arguments, framed charges

against the accused appellants for offences under Sections 147,

148, 302/149, 307, 325, 323, 307/149, 325/149, 324/149 &

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323/149 of IPC. The accused appellants denied the charges and

claimed trial. During the trial, on behalf of the prosecution as

many as 20 witnesses were examined and 84 documents were

exhibited. The explanation of the accused appellants was recorded

under Section 313 Cr.P.C. wherein they denied the allegations and

stated that they have been falsely implicated. In defence, 5

witnesses were examined and 12 documents were exhibited.

4. As per the prosecution case, Tejaji's Fair was ongoing in

Village Banetha for last few days. It is the case of the prosecution

that there was rumor going around that Pokhar (PW-9) has stolen

the 'prasad' of Tejaji and this charge is said to be made by Rodu.

It is further the case of the prosecution that on the night of

15.09.1986 at around 8:00 pm, 15 accused gathered at the

village chowk armed with gandasis and lathis. Out of 15 accused

persons, 8 were said to have been armed with gandasis and rests

were having lathis. Rodu incited everyone to kill Srinarain and his

family and all 15 persons mentioned in the FIR assaulted the

members of the complainant party including deceased Srinarain.

Out of 15 accused persons, learned Trial Court acquitted 3

accused; convicted 7 accused and gave them benefit of the

Probation of Offenders Act, 1958; accused - Nathu was convicted

for offence under Section 302/34 of IPC; accused- Unkar was

convicted for offence under Section 302/34 & 307/34 of IPC; 2

accused appellants - Kalu & Laddu were convicted for offence

under Section 307/34 of IPC and; accused- Rodu was convicted

for offence under Section 307/34 & 323 of IPC.

[2023:RJ-JP:29886-DB] (4 of 11) [CRLA-85/1989]

5. It is contended by learned counsel appearing for the accused

appellants that the dispute took place on the spur of the moment.

There are two injured persons on the side of accused i.e. Rodu

and Gulaba, whose injury reports are Exhibit-D8 and D9

respectively. It is also contended that deceased Srinarain

sustained 2 injuries on his head i.e. on left temporal parietal

region and on right parietal temporal region, which were caused

by blunt weapon. It is further contended that different versions

are given by different witnesses. Ramkaran son of Prabhu (PW-1)

has stated that Nathu hit the deceased with a lathi on his leg;

Laddu hit the deceased with gandasi on his back; Kalu hit with

gandasi on his neck; Rodu hit him with gandasi on his leg and

hips. Jagdish (PW-2) has stated that Nathu hit the deceased with

a lathi on his head; Laddu hit the deceased with gandasi on his

neck; Rodu hit the deceased with gandasi on his ears. Prahlad

(PW-3) has not made any specific allegation against accused

Nathu, Laddu and Kalu. As per injured Shankar (PW-5), Nathu hit

the deceased with a lathi and Rodu hit the witness with gandasi on

his head. As per Rughanath (PW-6) and Hazari (PW-7), Nathu hit

the deceased with a lathi on head. As per Bhanwar Lal (PW-8),

Rodu hit the deceased with gandasi on his head just above the ear

and Nathu hit the deceased with gandasi on his head. As per

Pokhar (PW-9), Rodu and Nathu hit the deceased with gandasi on

his head, Laddu hit Jagdish (PW-2) with a lathi on his head and

Rodu hit Ramkaran with gandasi on his head.

6. It is contended that different versions have been given by

different witnesses. Ramkaran (PW-1), Shankar (PW-5),

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Rughanath (PW-6) and Hazari (PW-7) have stated that Rodu gave

a call to everyone to finish off the deceased and his family.

Ramkaran son of Prabhu (PW-1) has not assigned the head injury

to any of accused. As per Jagdish (PW-2), Unkar hit the deceased

with a lathi on his head, due to which, the deceased fell down and

thereafter, everyone hit the deceased. As per eyewitness - Prahlad

(PW-3), Deva and Unkar hit the deceased and Unkar gave the first

blow. He has not levelled any specific allegation against Nathu,

Laddu and Rodu. It is also contended that the learned Trial Court

has held that offence under Sections 147, 148, 149 of IPC is not

made out. State has not preferred any appeal, hence, to that

extent, judgment of the learned Trial Court should be affirmed. It

is further contended that the learned Trial Court has come to the

conclusion that there was some dispute with regard to theft of

prasad and that the accused did not come with common intention

or common object.

7. It is contended by learned Additional Government Advocate

that the judgment does not call for any interference as the learned

Trial Judge has discussed the injuries of each injured and has also

considered the statements of injured witnesses before arriving at

the conclusion.

8. We have considered the contentions raised by learned

counsel for the parties and have carefully gone through the

material on record.

9. As many as 15 persons were charge-sheeted; out of which, 3

have been acquitted by the learned Trial Court and 7 were

[2023:RJ-JP:29886-DB] (6 of 11) [CRLA-85/1989]

convicted and were given benefit of the Probation of Offenders

Act. No appeal has been preferred by the accused or the State

against the said acquittal/conviction and grant of probation. We

are thus, not required to go into the question of conviction of 7 of

the accused, who were given the benefit of the Probation of

Offenders Act. Out of the 5 appellants, who have preferred the

appeal, Unkar and Rodu have expired during the pendency of the

appeal and the appeal stands abated against them. Therefore, we

are now required to deliberate only with regard to accused

appellants - Nathu, Laddu and Kalu.

10. Learned Trial Court has held that there was some dispute

between the parties with regard to naming Pokhar (PW-9) for

stealing the prasad. As far as the evidence goes, Ram Karan (PW-

1), Shankar (PW-5), Rughanath (PW-6) and Hazari (PW-7) have

deposed that Rodu was the one, who told everyone to finish the

deceased- Srinarain and his family. Thus, as per the prosecution,

the dispute started when Rodu gave a call to everyone to finish

Srinarain and his family. The FIR was lodged on the basis of

parchabayan of Ram Karan (PW-1) wherein he had levelled

allegations against all and there was no overt act assigned to each

accused. As to who gave the fatal blow to the deceased, there are

different versions. As per Ram Karan (PW-1), Nathu had hit the

deceased on his leg. Jagdish (PW-2), in his examination-in-chief

has stated that Unkar hit the deceased with a lathi on head and

Laddu hit the deceased with gandasi on his neck and in his cross-

examination, he has stated that Unkar, was the one, who first hit

the deceased on head, upon which he fell down and then everyone

[2023:RJ-JP:29886-DB] (7 of 11) [CRLA-85/1989]

started to give beating to him. As per Prahlad (PW-3), Deva and

Unkar hit the deceased and it was Unkar, who gave the first blow.

He has not levelled any specific allegations against Nathu, Laddu

and Kalu. However, Shankar (PW-5), Rughanath (PW-6) and

Hazari (PW-7) have deposed that Unkar and Nathu both hit the

deceased with lathi on his head. Similar is the statement of

Bhanwar Lal (PW-8), who has also deposed that Unkar hit the

deceased with lathi on head, however, he has stated that Nathu

hit the deceased with gandasi on his head. Pokhar (PW-9) has

deposed that Rodu and Nathu hit the deceased with gandasi on his

head. Thus, if we scan the evidence, as per Bhanwar Lal (PW-8)

and Pokhar (PW-9), Nathu was armed with a gandasi and he hit

the deceased on his head with a gandasi, however, from perusal of

the evidence of other witnesses, Nathu was armed with a lathi.

Thus, to this extent, Bhanwar Lal (PW-8) and Pokhar (PW-9)

cannot be relied upon as they have stated that Nathu was armed

with gandasi and he hit the deceased with gandasi.

11. If Ram Karan (PW-1) is to be believed, as per him, Nathu hit

the deceased on his leg. As per Jagdish (PW-2), in his

examination-in-chief, he assigned the head injury to Unkar and

Nathu, however, in his cross-examination, he has mentioned that

after Unkar hit the deceased on head, he fell down and then Kalu

and Laddu were the first to give blow to the deceased. In his

cross-examination, he has not assigned the head injury to Nathu.

Prahlad (PW-3) has deposed that Deva and Unkar hit the

deceased. He has not levelled any allegation against Nathu, Laddu

and Kalu. Shankar (PW-5), who is also an injured witness, has

[2023:RJ-JP:29886-DB] (8 of 11) [CRLA-85/1989]

stated that Unkar hit the deceased on his head, however, he has

not stated that Nathu hit the deceased on his head. He has simply

stated that Nathu also hit the deceased with a lathi. Rughanath

(PW-6) and Hazari (PW-7) have deposed that Unkar hit the

deceased on his head and Nathu also hit the deceased with a lathi

on his head. Thus, except for these two witnesses-Rughanath

(PW-6) and Hazari (PW-7), no one has stated that Nathu hit the

deceased on his head. Thus, from the evidence adduced before

the learned Court below, it is evident that Unkar hit the deceased

with a lathi on his head and that it was Unkar, who gave the first

blow.

12. Ram Karan (PW-1) has deposed that Nathu hit the deceased

with lathi on his leg. Prahlad (PW-3) has deposed that Unkar gave

the first blow and Deva & Unkar hit the deceased. He has not

levelled any allegation against Nathu, Laddu and Kalu. Shankar

(PW-5) has also deposed that Nathu hit the deceased with lathi,

but he has not specified as to whether the deceased was hit by

Nathu on his head. Thus, we can conclude that the deceased was

hit by a lathi on head by Unkar and since there are different

versions; it cannot be held that Nathu gave the fatal blow to the

deceased and the conviction of accused appellant - Nathu for the

offence under Section 302/34 of IPC cannot be sustained.

13. So far as conviction of accused - Unkar, Kalu, Rodu and

Laddu for offence under Section 307/34 of IPC is concerned,

Unkar and Rodu have expired and thus, we would be only dealing

with the role of accused - Kalu and Laddu. As far as accused-Kalu

[2023:RJ-JP:29886-DB] (9 of 11) [CRLA-85/1989]

is concerned, the allegation against him is that he gave a blow on

the neck of Jagdish (PW-2) with a lathi. The said injury is said to

be grievous by Dr. V.D. Sharma (PW-16). Since the said injury has

been caused by a lathi on the neck, it cannot be said to be on vital

part of the body so as to hold accused - Kalu guilty for offence

under Section 307 of IPC. However, as far as accused-Laddu is

concerned, Jagdish (PW-2) has deposed that Laddu gave a blow

with gandasi on his head, which injury, as per by Dr. V.D. Sharma

(PW-16), has been caused by a sharp weapon and since the injury

has been caused on the head, which is a vital part, the conviction

of accused-Laddu for offence under Section 307/34 of IPC was

justified. Therefore, we do not find any illegality or error in order

of conviction of accused-Laddu for offence under Section 307/34

of IPC. Accordingly, we set aside the conviction of accused-Kalu

for offence under Section 307/34 of IPC and uphold the conviction

of accused-Laddu for offence under Section 307/34 of IPC.

14. So far as the other injured witnesses are concerned, Ram

Karan (PW-1), Prahlad (PW-3), Shankar (PW-5), Rughanath (PW-

6) and Hazari (PW-7) have not assigned any injuries to the

present appellants. Thus, the present appellants have caused

injuries only to the deceased and Jagdish (PW-2).

15. In the deliberations made herein-above, we have come to

the conclusion that Unkar gave blow with a lathi on the head of

the deceased, upon which, the deceased fell down and all other,

accused gave beating to him. It was not established that Nathu

gave fatal blow to the deceased, thus we set aside the conviction

[2023:RJ-JP:29886-DB] (10 of 11) [CRLA-85/1989]

of Nathu for offence under Section 302/34 of IPC, however, Nathu

had given blow to the deceased and Kalu had also given blow to

Jagdish (PW-2), therefore, we hold them guilty for offence under

Sections 323 and 324/34 of IPC as both Nathu and Kalu were

armed with lathis, therefore, as has been the fate of other co-

accused in this case, who were given the benefit of the Probation

of Offenders Act, we deem it proper to give both the accused

appellants-Nathu and Kalu the benefit of Probation of Offenders

Act.

16. However, as far as accused-Laddu is concerned, his

conviction for offence under Section 307/34 of IPC do not call for

any interference and accordingly, his conviction for offence under

Section 307/34 of IPC is upheld. Thus, the appeal so far it relates

to accused - Laddu is dismissed and his conviction and sentence is

upheld. The appeal so far it relates to accused appellants - Nathu

and Kalu is partly allowed; conviction and sentence of accused -

Nathu for offence under Section 302/34 of IPC and conviction and

sentence of accused - Kalu for offence under Section 307/34 of

IPC is set aside and instead, both accused appellants - Nathu and

Kalu are convicted for offence under Sections 323 and 324/34 of

IPC and are given benefit of the Probation of Offenders Act. The

bail bonds earlier submitted by the accused appellants - Nathu,

Kalu and Laddu stands cancelled.

17. The learned trial Court is directed to take necessary steps for

taking the accused appellant - Laddu in custody for serving the

remaining sentence.

[2023:RJ-JP:29886-DB] (11 of 11) [CRLA-85/1989]

18. Appellants- Nathu and Kalu are directed to furnish personal

bond in the sum of Rs.50,000/- each 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 appellants on

receipt of notice thereof, shall appear before the Hon'ble Apex

Court. The bail bond will be effective for a period of six months.

19. A certified copy of this order along with record of the case be

sent to the learned Trial Court forthwith.

                                   (BHUWAN GOYAL),J                                              (PANKAJ BHANDARI),J

                                   SUNIL SOLANKI /PS









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