Rajasthan High Court
Mangilal And Ors vs State Of Rajasthan Through Pp on 27 September, 2023
Bench: Pankaj Bhandari, Bhuwan Goyal
[2023:RJ-JP:23957-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 277/2017
1. Mangilal S/o Sh. Prabhulal, R/o House No.235/4, Harijan
Basti, Keshavpura, Kota, PS Mahaveer Nagar, Kota.
Appellant In Jail, Kota.
2. Sikandar S/o Sh. Mangilal, R/o House No.235/4, Harijan
Basti, Keshavpura, Kota, PS Mahaveer Nagar, Kota.
Appellant In Jail, Kota. (since died)
3. Jitendra @ Jeetu S/o Sh. Mangilal, R/o House No.235/4,
Harijan Basti, Keshavpura, Kota, PS Mahaveer Nagar,
Kota. Appellant In Jail, Kota.
----Appellants
Versus
State Of Rajasthan Through P.P.
----Respondent
For Appellant(s) : Mr. Sajid Ali, Adv.
For Respondent(s) : Mr. Javed Choudhary, Addl.G.A.
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE BHUWAN GOYAL
Judgment
RESERVED ON :: 15/09/2023
PRONOUNCED ON :: 27/09/2023
(Per - Hon'ble Pankaj Bhandari, J.)
1. The appellants have preferred the instant appeal aggrieved
by the impugned judgment and order dated 12.12.2015 passed by
the Additional Sessions Judge No.3, Kota, whereby the accused
appellants have been convicted and sentenced for the offences as
under:
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(i) For the offence under Section 302/34 IPC - Life
imprisonment and a fine of Rs.5,000/- and in default of
payment of fine, to further undergo 6 months simple
imprisonment.
(ii) For the offence under Section 323/34 IPC - 1 year simple
imprisonment and a fine of Rs.1,000/- and in default of
payment of fine, to further undergo 1 month simple
imprisonment.
(iii) For the offence under Section 341 IPC - 1 month simple
imprisonment and a fine of Rs.500/- and in default of
payment of fine, to further undergo 15 days simple
imprisonment.
All the sentences were directed to run concurrently.
2. Since after filing of the appeal, accused appellant No.2 -
Sikandar has expired and the appeal stands abated against him,
the present appeal is now being decided only to the extent of
accused appellant Nos.1 and 3 - Mangilal and Jitendra @ Jeetu.
3. Succinctly stated the facts of the case are that on
11.06.2012, complainant - Sanjay (PW-1) filed a complaint/
parchabayan (Exhibit-P1) in Mahaveer Nagar Police Station stating
therein that on 11.06.2012 at around 9:45 pm, when he and his
brother Dinesh (deceased) were sitting outside their house,
accused- Sikandar came towards him and started arguing with
him and also threatened him. Thereafter, father of accused-
Sikandar, Mangilal also came at the scene with a gandasa and hit
him on his head. He then began to bleed and entered his home to
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retrieve a stick, in order to defend himself. Thereafter, Mangilal
used gandasa to hit his brother Dinesh on the head. Furthermore,
two brothers of the accused Sikandar, namely, Jitendra and
Chandan also arrived at the scene. Jitendra was holding a water
pipe, while Chandan had an iron rod. They also inflicted injuries to
deceased-Dinesh on his head. When he came outside the house,
Jitendra attacked him with a pipe on his left hand wrist. Sikandar
also commanded to beat them. Govind (PW-2), who stepped in
between to save him and his brother, also got injured. Rekha (PW-
5), his wife also suffered injuries, when she tried to save her
husband and the deceased. Dinesh was shifted to the hospital,
where he expired on 12.06.2012. The enmity is said to be due to
a dispute, which took place with him on an accident, which had
happened a few days earlier. As per the prosecution, few days
before the incident, Chandan and Ratan Lal (PW-10) were fighting
and the complainant stepped in between to save Ratan Lal (PW-
10) from the accused. The accused side came to take revenge of
the said incident.
4. On the basis of the said parchabayan, on 12.06.2012 the
police registered an FIR bearing No.520/2012 for the offence
under Sections 341, 323, 307, 34 of IPC and after due
investigation, the police filed charge-sheet against all the accused
appellants including Chandan. The case of accused-Chandan was
transferred to Juvenile Justice Court treating him as a juvenile.
The case of other accused was committed to the Court of Sessions
for trial. Trial Court framed the charges for offences under
Sections 302 or 302/34, 323 or 323/34 and 341 of IPC. The
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accused denied the charges and sought trial, upon which, the
prosecution examined as many as 17 witnesses & 2 additional
witnesses and exhibited 33 documents. Explanation of the accused
appellants was recorded under Section 313 Cr.P.C., wherein they
denied the charges levelled against them. In defence, 7
documents were exhibited. The learned Trial Court, after hearing
the arguments of both the parties, has convicted the accused
appellants as stated hereinabove. Since accused appellant -
Sikandar has expired, we are only mentioning with regard to the
sentence awarded to accused-Mangilal and Jitendra.
5. It is contended by learned counsel appearing for the accused
appellants that the prosecution has not come up with true facts of
the case. The accused side has also sustained injuries. Accused-
Chandan has sustained a fracture. Injuries caused to accused-
Jitendra & Sikandar have not been explained by the prosecution.
It is argued that the Investigating Officer - Vikas Sharma (PW-
17), has admitted that accused side has also sustained injuries
and that he did not try to inquire, as to how the accused sustained
injuries. It is also contended that the incident took place on the
spur of the moment. The wireless information, which was received
by the police, was also to the effect that a dispute took place
between two parties. It is further contended that since the dispute
took place on the spur of moment, the case would not travel
beyond Section 304 Part-II of IPC. It is also argued that the
recovery of lathis and gandasas is not established by the
prosecution for the very reason that there were no independent
witnesses to the recoveries made at the instance of the accused.
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6. On the other hand, learned Additional Government Advocate
appearing for the State has opposed the appeal. It is contended
that the injured witnesses have deposed that Mangilal gave an axe
blow to the deceased. It is also contended that all the witnesses
have given statements to the effect that Mangilal and other
accused had inflicted injuries with axe, rod and iron pipe, and thus
the conviction under Section 302/34 of IPC does not call for any
interference by this Court.
7. We have considered the contentions raised by learned
counsel for the parties and have perused the evidence on record.
8. Having scanned to the evidence, it is evident that Sikandar
came to the place of occurrence where complainant - Sanjay (PW-
1) and his brother Dinesh were sitting. Thereafter, some
altercation took place between complainant side and Sikandar and
then Mangilal also came at the spot. The complainant retrieved a
stick and came outside the house and thereafter, other accused
i.e. Jitendra and Chandan also came to the place of occurrence.
The accused side has also sustained injuries and it was a free
fight, which took place between the complainant side and the
accused side. It is admitted by Mohan Singh (PW-13) that at
10:00 PM, an information was received through wireless in the
Control Room that two parties were fighting amongst themselves.
He has further stated that when he reached the place of
occurrence, he got information that both the parties after the fight
had left for MBSH Hospital. In the cross-examination, this witness
has admitted that the accused side has also sustained injuries and
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that he did not make any effort to ascertain as to how the accused
side received injuries.
9. Vikas Sharma - Investigating Officer (PW-17) has also
admitted that accused - Sikandar, Jitendra and Chandan sustained
injuries. He has also admitted that injury No.2 received by
Chandan was grievous in nature. He has further admitted that
there is nothing on record to explain as to how the accused side
sustained injuries. He has also admitted that he did not inquire as
to how the dispute started. The prosecution witnesses have not
given any explanation with regard to the injuries caused to the
accused side. It is thus evident that the prosecution has tried to
conceal the factum of accused being injured. The Investigating
Officer has not even cared to ascertain the reason as to why the
dispute cropped up. It is also evident that the dispute started at
the spur of the moment when some altercation took place
between the accused side and the complainant side. Thereafter,
both the parties armed with weapons attacked each other.
10. It is pertinent to note that other injured persons, namely,
Sanjay (PW-1), Govind (PW-2) and Rekha (PW-5), have all
sustained simple injuries caused by blunt weapon. Thus, it cannot
be said that all the accused with common intention and to cause
death attacked the deceased, rather it is a case where a sudden
fight started in the heat of passion and both the sides inflicted
injuries to each other. There was no premeditation and thus, the
case would fall within Exception-4 of Section 300 of IPC. The
present case can also be covered under Exception-2 of Section
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300 of IPC as Mangilal has exercised his right to private defence
and gave a blow with gandasa, when his son was beaten by the
complainant side and sustained a grievous injury. At most, it can
be said that he exceeded his right of private defence and thus, the
case would fall within the ambit of Section 304 Part-II of IPC.
11. The learned Trial Court has not dealt with the injuries caused
to the accused side and only on the basis of the evidence of the
injured witnesses has arrived at the conclusion of guilt of the
accused appellants and has convicted them for the offence under
Section 302/34 of IPC. We are of the considered view that the
conviction under Section 302/34 of IPC cannot be sustained for
the very reason that the fight took place on the spur of the
moment and both the sides have sustained injuries. Also, as per
the wireless information received by the police, the fight took
place between two parties and both were injured. We, therefore,
deem it proper to quash the conviction of the accused appellants
for the offence under Section 302/34 of IPC and instead convict
accused appellant Nos.1 and 3 - Mangilal and Jitendra for the
offence under Section 304 Part-II read with Section 34 of IPC and
sentence them for 10 years simple imprisonment with a fine of
Rs.10,000/- and in default of payment of fine, to further undergo
6 months simple imprisonment. The conviction and sentence for
the offence under Sections 323/34 & 341 of IPC is upheld. All the
sentences are directed to run concurrently. Consequently, the
appeal qua accused appellants No.1 & 3 - Mangilal and Jitendra is
partly allowed. The appellant Nos.1 & 3 - Mangilal and Jitendra
are in jail, they be set at liberty forthwith, if not required in any
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other case or for any other purpose. The judgment of conviction
and order of sentence dated 12.12.2015 passed by the Learned
Trial Court stands modified as above.
12. Appellant Nos.1 & 3 - Mangilal and Jitendra 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, they 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.
(BHUWAN GOYAL),J (PANKAJ BHANDARI),J
SUNIL SOLANKI /PS
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