1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Prabhu Ram & ors. Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.45/1984 against the judgment dt.21.12.83 passed by the Sessions Judge, Merta, in Sessions Case No.7/1982. Date of Judgment: Oct.13, 2009 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.J.P.Joshi ) Mr.Sidharth Joshi ) Mr.Khet Singh Rajpurohit) for the appellants. Mr.Anil Upadhyay, Public Prosecutor. BY THE COURT : (PER THANVI J.) 2 1. This appeal is directed against the judgment of learned Sessions Judge, Merta dated 21.12.83 passed in Sessions Case No.7/82, whereby he convicted & sentenced the five accused appellants viz; Prabhu Ram, Chittar Ram, Ranglal, Ugama Ram and Hiralal under various Sections of the Indian Penal Code as follows: All ACCUSED U/s. 302/149 IPC Life imprisonment alongwith a fine of Rs.100/- & in default, to further undergo one year's R.I.; All ACCUSED U/s.460 IPC Ten years' R.I. alongwith a fine of Rs.100/- & in default, to further undergo six months' R.I.; All ACCUSED U/s.148 IPC One year's R.I. alongwith a fine of Rs.50/- & in default, to further undergo one month's S.I.; ACCUSED PRABHU RAM, HIRALAL, UGAMA RAM & CHITTAR RAM U/s.325/149 IPC One year's R.I. alongwith a fine of Rs.50/- & in default, to further undergo one month's R.I.; ACCUSED RANGLAL U/s.325 IPC One year's R.I. alongwith a fine of Rs.50/- & in default, to further undergo one month's R.I.; ACCUSED PRABHU RAM, HIRALAL, UGAMA RAM & CHITTAR RAM U/s.323/149 IPC One month's S.I.; & ACCUSED RANGLAL U/s.323 IPC One month's S.I. All the substantive sentences were ordered to run 3 concurrently. 2. Facts leading to this appeal are that on 28.9.81 in the morning at about 3.30 AM, the FIR was lodged at Police Station, Thavla that on 27.9.81 i.e. one day prior to the incident at about 7.15 PM, accused Goverdhan, Smt.Rasal w/o Prabhu and five other persons came to the house of Jagdish s/o Jodhraj. They were armed with deadly weapons. As per the FIR, he had gone to `Navora well' and when he returned back to his house, he saw the accused persons coming out from his house. Accused Prabhu was armed with `farsi', Ranglal with `kulhari' and Chittar & Hira with tyre levers and accused Goverdhan & Ugama were armed with lathis. The truck No.RJN8359 was standing outside near the house of Jawara Ram and Harlal. Accused persons boarded the truck and went away from the place. When he entered into the house, he found his brother Ramlal dead and his mother sustained injuries on her hand, which resulted in fracture and his brother's wife also received injuries on her hand. He was told that the accused Prabhu had taken gold ornaments of her mother and a `kanthi' belonging to wife of Shri Ram was snatched by accused Ranglal. Upon this report, the 4 police registered a case and commenced investigation. The autopsy of the dead body was conducted and the injured were also examined. It has also been reported in the FIR that there was a dispute about the agricultural land between the accused and the complainant party. The accused had taken the possession of the land and on being asked for vacating the same, they have committed this offence. The accused were arrested and upon their information, the deadly weapons were recovered. After investigation of the case, the police filed challan against the accused persons before the Court of Judicial Magistrate u/ss.302, 307, 460, 394, 325, 323, 147, 148 and 149 IPC, who committed the case to the Court of Sessions. After hearing the arguments on charge, accused Prabhu Ram was charged u/ss.147/148, 302, in alternative 302/149, 307, in alternative 307/149, 323, in alternative 323/149, 394 and 460 IPC and rest all the nine accused were charged u/ss.147, 148, 302, in alternative 302/149, 307, in alternative 307/149, 323 and in alternative 323/149, to which they all pleaded not guilty. The prosecution examined 20 witnesses. The statements of the accused were recorded u/s.313 CrPC. They produced two witnesses in the defence. After 5 hearing the arguments, the learned trial Judge convicted the accused Prabhu Ram, Chittar Ram, Ranglal, Ugama Ram and Hiralal as above but acquitted accused Goverdhan, Smt.Sonki, Smt.Rasal, Puna Ram and Jaiprakash of the charges levelled against them. Accused Prabhu was also acquitted under Sec.394 IPC. 3. We have heard the arguments of the learned counsel for the appellants and the learned Public Prosecutor and perused the record of the case. 4. Learned counsel for the appellants has not questioned the homicidal death of deceased Ramlal but has submitted that the dispute arose when the deceased Ramlal went to the field of the accused party over which they were having the possession, and took away the crop, upon which the accused party went to the house and during hot exchanges, this incident took place. According to the learned counsel, there was no intention on the part of the accused party to kill deceased Ramlal but they went to the house of Ramlal for the purpose of complaining as to why he cut their crop and in the scuffle, certain injuries were also received by the members of the accused party. 6 According to the learned counsel, as per the post mortem report, there was not a single injury, which was sufficient in the ordinary course of nature to cause death. It is also not proved that by whose blow, the death was caused. He simply submits that it is a case falling under ss.299 read with 304 part II IPC. The accused appellants have remained in custody for about five years, therefore, the custodial sentence will meet the ends of justice. 5. Per contra, learned Public Prosecutor has supported the judgment of the learned trial Court. 6. With regard to the submission made by the learned counsel for the appellants, it is clear from the post mortem report Ex.P.20 that the injuries No.7, 9 and 10 were individually sufficient in the ordinary course of nature to cause death and all injuries were collectively sufficient in the ordinary course of nature to cause death of deceased Ramlal. Deceased Ramlal was examined by the Dr.Satya Narayan, PW 17, who found in all 27 injuries on the person of deceased. Injury No.7 is the fracture of nasal bone on the right side of nose, injury No.9 is bruise on the right cheek and injury 7 No.10 is also bruise on the right side of face 2” in front of the right ear, which is also fracture. If these injuries are looked into in the light of testimony of the eye witnesses, the important eye witnesses are Jhamku, PW 8 and Harjudi, PW 9, mother and wife of deceased respectively and Panchudi, PW 10. Out of these witnesses, Jhamku PW 8 and Harjudi PW 9 sustained injuries vide Ex.P.21 and Ex.P.24 respectively. According to the doctor, the accused also received injuries during this scuffle. He examined accused Prabhu Ram vide Ex.P.25, Ranglal vide Ex.P.26 and accused Puna Ram vide Ex.P.27. Both the injured eye witnesses Jhamku PW 8 and Harjudi PW 9 have stated that accused Prabhu inflicted `farsi' blow on the neck, Hira inflicted `farsi' blow on the back side of Ramu (deceased) and thereafter all the accused inflicted blows. Harjudi, PW 9 has further stated that accused Prabhu inflicted `farsi' blow on the right side of the scalp and then Hira inflicted`farsi' blow but she did not know as to on which part of the body of deceased, the same was inflicted. Thereafter, her husband fell down and all the accused inflicted blows. From the evidence of these injured eye witnesses i.e. Jhamku PW 8 and Harjudi PW 9, who are mother and wife of deceased 8 respectively, it reveals that the accused Prabhu and Hira inflicted one blow each and rest of the injuries were inflicted by the all the accused conjointly resulting in 27 injuries. Both these witnesses have also stated that before the scuffle, there was a talk between the deceased and the accused party for five minutes and thereafter, the beating started. There are other eye witnesses of the incident viz; Panchudi, PW 10, Bhura Ram, PW 13, Pancha PW 14, Bhiya Ram PW 15 and Pratap Ram, PW 16 are the witnesses, who had seen the accused coming out from the house of the deceased Ramlal after the incident. The cause of scuffle as stated by the mother of deceased viz; Jhamku PW 8 is that there is an agricultural land at `Beechla Jav' and `Neemdawala Jav', which was being cultivated by Goverdhan and his sons, who are accused. During the period of incident, there was a `bajra' crop standing in the field of father of the accused persons and it is true that the accused persons filed a report against them for cutting the `bajra' crop. So far as the truck is concerned, it is stated by this witness that on the date of incident, accused Prabhu brought the truck with `Gwar'. This statement of mother of deceased Ramlal supported by certain other witnesses, makes it clear 9 that a report was also lodged against the complainant party including the deceased for cutting `bajra' crop of father of accused persons and when the accused persons went to make complaint in this regard at the house of deceased, hot exchange took place between the two for about five minutes and thereafter, accused Prabhu and Hira inflicted one blow each upon the deceased and rest of the accused inflicted lathi blows, which resulted in death of deceased. The initial intention of the accused party from this evidence cannot be said to have been of committing murder of deceased but they made an entry into the house of deceased after sun set for the purpose of making complaint as to why their crop was cut and the report of the incident was also lodged by the accused party against the deceased and during scuffle, the accused party also received the injuries. Since the number of persons from the side of the accused party was more than that of the side of the complainant and all were having deadly weapons in their hands, it resulted in death of deceased Ramlal by cumulative effect of all the injuries. Since the injuries have been inflicted by all the accused, their act can be termed as having knowledge that by such multiple injuries, death can be caused. 10 Such type of act with the common object is defined as culpable homicide not amounting to murder punishable u/s.304 part II IPC, as there was no intention of any of the accused to kill deceased Ramlal. 7. So far as the offence u/s.460 IPC is concerned, the charge was only against accused Prabhu Ram but the learned trial Judge convicted all the accused appellants under Section 460 IPC. Section 460 IPC is attracted only when there is a lurking house trespass by night or house breaking by night in order to commit offence of causing death or grievous hurt to any person but when there was no apparent act of other accused appellants except Prabhu, their conviction under Section 460 IPC cannot be sustained. Likewise, this charge also stands disproved against accused Prabhu Ram as well because there is no evidence of lurking house trespass or breaking house. Here in the present case, there is no such element of lurking house trespass by the accused, who simply entered in the house of the deceased for the purpose of complaining as to why he cut the crop of the accused party for which a report was also lodged against the complainant party. Therefore, in our view, the charge against the accused Prabhu Ram also stands 11 disproved u/s.460 IPC. All the five accused appellants are guilty under Section 304 part II read with Sec.149 IPC and 148 IPC. Accused appellants Prabhu Ram, Chittar Ram, Ugama Ram and Hiralal are also guilty u/ss.325/149 & 323/149 IPC and accused Ranglal is guilty u/ss.325 & 323 IPC. As stated by the learned counsel for the appellants, accused Prabhu Ram has remained in custody for the period 2.10.81 to 13.11.86 i.e. for more than five years, accused Ranglal & Hira Lal have remained in custody for the period 2.10.81 to 2.9.85 i.e. for about four years and eleven months and accused Chittar Ram and Ugama Ram have remained in custody for the period 2.10.81 to 24.2.84 i.e. for about twenty eight months. Therefore, in our view, the case which is 28 years old and arose out of the incident on the issue of cutting crop of the accused party, we deem it proper that the custodial sentence will meet the ends of justice. 8. Consequently, we allow this appeal in part. While altering the conviction of the accused appellants Prabhu Ram, Chittar Ram, Ranglal, Ugama Ram and Hiralal recorded by the learned Sessions Judge, Merta vide his judgment dated 21.12.83 from Sec.302/149 IPC to Section 304 part II 12 IPC read with 149 IPC, they are sentenced to the period already undergone, alongwith a fine of Rs.100/- & in default, to further undergo one year's R.I. The conviction & sentence of all the five accused appellants u/s.148 IPC with one year's R.I. alongwith a fine of Rs.50/- & in default, to further undergo one month's S.I. are maintained. The conviction & sentence of the accused appellants viz; Prabhu Ram, Chittar Ram, Ugama Ram and Hiralal under s.325/149 IPC with one year's R.I. alongwith a fine of Rs.50/- & in default, to further undergo one month's R.I. and u/s.323/149 with one month's S.I., are maintained. The conviction & sentence of accused Ranglal u/s.325 IPC with one year's R.I. alongwith a fine of Rs.50/- & in default, to further undergo one month's R.I. and u/s.323 IPC with one month's S.I. are also maintained. However, all the accused appellants are acquitted of the offence u/s.460 IPC. Accused appellants are on bail, they need not surrender. The accused appellants are directed to deposit the amounts of fine awarded by the trial Court and this Court on different counts within a period of 30 days from today, else the trial Court shall issue warrant of arrest against the accused appellants for undergoing the sentence, awarded in default of payment of fine. 13 (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS