1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Ranchhora & ors. Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.187/2004 against the judgment dt.9.2.04 passed by Addl.Sessions Judge (FT), Jalore, Camp Bhinmal, in Sessions Case No.41/03 (8/01). Date of Judgment: Sept.07, 2009 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Pradeep Shah, for the appellants. Mr.K.R.Bishnoi, Public Prosecutor. Mr.Vijay Purohit, for complainant. BY THE COURT : (PER THANVI J.) This appeal is directed against the judgment of the learned Addl.Sessions Judge (FT) Jalore, Camp Bhinmal dated 9.2.2004, whereby he convicted the appellants Ranchhora, Jairoopa and Mota Ram under sections 2 302/34, 307/34, 325/34, 324/34 and 323/34 IPC and sentenced them as under: U/Sec.302/34 IPC Life imprisonment and a fine of Rs.3000/-each and in default, to further undergo two years' S.I.; U/Sec.307/34 IPC Seven years' R.I. and a fine of Rs.1500/-each and in default, to further undergo one year's S.I.; U/Sec.325/34 IPC Four years' R.I. and a fine of Rs.1000/-each and in default, to further undergo six months' S.I.; U/Sec.324/34 IPC Two years' R.I. and a fine of Rs.500/-each and in default, to further undergo three months' S.I.; U/Sec.323/34 IPC One year's R.I. and a fine of Rs.250/-each and in default, to further undergo one month's S.I.; Facts leading to this appeal are that on 24.9.2000 at 10.40 AM, Jora son of Prabhu by caste Rebari lodged the FIR that in the morning, he went to cut his `bajra' crop over his land, where accused Jairoopa, Ranchhora, Chamna, Lakha, Balka, Harchand, Mala, Mota, Sopa, Vachna, Ganesha & Samartha wrongly entered into his field and started beating. They all were armed with deadly weapons. Accused Jairoopa had a `dharia' with 3 which he inflicted injury on the person of Harkan and rest of the accused persons also started beating and in the process of the same, gold ear rings of Jora amounting to Rs.2000/- were snatched. On hearing their hue & cry, Hukma and Vena came to rescue them. While leaving the field, the accused threatened to kill them. Upon this report, the police registered a case under sections 143, 447, 382 and 323 IPC and commenced investigation. During investigation, Chopa Ram died. All the seven injured were medically examined by the doctor. The post mortem of Chopa Ram was conducted vide Ex.P.41 and in the opinion of the doctor, Chopa Ram died due to head injury. After investigation, the accused appellants Ranchhora, Jairoopa and Mota Ram were challaned before the learned Judicial Magistrate, I Class, Sanchore, who committed the case to the learned Addl.Sessions Judge, Bhinmal. Learned trial Judge framed charges against the above three appellants u/ss.447, 302, 302/34, 307, 3-7/34, 325, 325/34, 324, 324/34, 323 and 323/34 to which they pleaded not guilty. The prosecution examined 19 witnesses. The statements of the accused were recorded under Sec.313 CrPC. They produced two witnesses in their defence. The prosecution proved 56 4 documents and the defence proved 25 documents. After hearing, the learned trial Judge convicted and sentenced the accused appellants as above. We have heard learned counsel for the appellants and gone throught the record of the case carefully. Learned counsel has not challenged the guilt of the accused as also the death of Chopa Ram but his contention is that the accused are not guilty under Section 302 IPC but at the most, their case does not fall beyond the ingredients of Section 304 part II IPC. In this regard, he has drawn our attention towards the statements of certain eye witnesses as well as the investigating officer and submitted that the land in question, where the incident took place, was in possession of the accused appellants and it was the deceased and other injured, who trespassed over the land and committed the offence. According to him, the cross case was also registered against the complainant party in which they have been convicted by the learned trial Judge under ss.148, 325/149, 324/149 and 323/149 IPC against which an appeal has also been preferred being S.B.Cr.Appeal No.210/2004. 5 Per contra, learned Public Prosecutor has supported the judgment of the learned trial Court. We have reappreciated the evidence in the light of the arguments advanced by the learned counsel for the appellants and in this regard, the most important witness is Kalu Ram, Sarpanch of the village, who has been examined as PW 13 in which he has stated that the agricultural land, where the incident took place was in the possession of the accused appellants and they used to cultivate it for last 40 years. According to this witness, the members of the complainant party went at the field of the accused appellants so as to forcibly dispossess them. Then, there is the statement of Suresh Kumar, PW 14, of the same village, who is Patwari and has proved Jamabandi and trace map Ex.P.45 to Ex.P.47 in which Jamabandi has been shown in the name of the complainant party viz; Harkan and Jora. This Jamabandi is pertaining to the Samvat Year 2054 to 2057 but if the statement of this Patwari Suresh Kumar, PW 14 is looked into in the light of the statement of the Sarpanch Kalu Ram, PW 13 and the investigating officer Shakoor Mohd., PW 19, it appears 6 from their cross examination that on the relevant day of incident, the land where the incident has taken place, was in possession of the appellants and it were the members of the complainant party, who had gone to the land to dispossess the accused party forcibly. The statements of the witnesses reveal that except patwari Suresh Kumar PW 14, Sarpanch Kalu Ram PW 13 and the investigating officer Shakoor Mohd. PW 19 have proved the possession of the accused appellants over the field, where the incident has occurred. The statement of Suresh Kumar Patwari PW 14 is contradicted by the statement of Chunnilal DW 1 who was the then Sub Inspector of Police Station, Karda in which he has stated that he took the possession of the disputed land in pursuance to the order of the SDM, Sanchore vide Ex.D.23 from the accused appellant and handed over the same to the appellants in compliance of the order dated Ex.D.24 passed by the learned Addl. Sessions Judge, Bhinmal and compliance report was sent to the learned SDM, Sanchore vide Ex.D.25. From the statements of these two prosecution witnesses and one witness of the defence, as discussed above, it is established that the possession was handed over to the accused party on 15.12.99 and this incident took place 7 on 24.9.2000 i.e. almost nine months after the accused appellants took the possession over the land. This goes to show that there was a dispute about the agricultural land and both parties were claiming possession over the land but infact the possession was in the name of the accused appellants and the complainant party was the aggressor and that is why the accused party also received injuries as revealed from injury reports of Jairoopa, Ranchhora and Mota Ram, Ex.D.20, Ex.D.21 and Ex.D.22 respectively and on the basis of these injuries, they have been convicted by the learned trial Judge against which S.B.Cr.Appeal No.210/04 has been preferred. Learned trial Judge has also observed that there was a free fight between the parties. The same finding has been recorded by the learned trial Judge in para 47 of the judgment. When such is the situation, then the question which calls for interference is as to whether the offence under Section 302 IPC is made out or not. To attract the ingredients of Section 302 IPC, which defines culpable homicide amounting to murder, there must be an intention to cause death or such bodily injury as is likely to cause death or that injury is 8 sufficient in the ordinary course of nature to cause death. Undoubtedly, there was no intention on the part of the accused appellants to kill Chopa Ram with a premeditation of mind because it was the complainant party including the deceased, who entered into the field of accused appellants and started fighting for possession of the land. In this scuffle, Chopa Ram received five injuries in all. Only one bruise on left fronto parietal region of head was noticed by the doctor and rest of the injuries were on non-vital parts of the body. This injury proved fatal. There is no recovery of any weapon from the accused appellants and according to the post mortem report, Chopa died on account of shock due to head injury. This head injury has been specified in the injury report Ex.P.32, which is said to have been caused by blunt weapon. The injury by the sharp weapon is caused on the lower part of the left leg, which is not a vital part. When the injuries have been caused by blunt object in a free fight wherein the accused appellants also sustained injuries in their own field, where complainant party came to dispossess them, then only inference which this Court can draw is that it is not a case of culpable homicide amounting to murder but it is definitely a case of culpable homicide 9 not amounting to murder punishable under Section 304 part II IPC because this act of the accused party falls under the category of Exception IV of Section 300 IPC which says that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. In view of the above discussion, we are unable to agree with the finding of the learned trial Court with regard to the guilt of the accused under Sec.302 IPC but at the most, they can be held liable under Section 304 part II IPC. Their guilt for the other offences has not been questioned by the learned counsel for the appellants. On the quantum of sentence, it has been argued by the learned counsel for the appellants that they have already remained in custody for more than six years, therefore, they should be sentenced to the period already undergone. We are in agreement with the contention of the learned counsel for the appellants. 10 Consequently, we allow this appeal in part. While maintaining the conviction of the accused appellants Ranchhora, Jairoopa and Mota Ram under sections 307/34, 325/34, 324/34 and 323/34 recorded by the learned Addl.Sessions Judge (FT), Jalore, Camp Bhinmal vide his judgment dt.9.2.2004, their conviction u/s.302/34 IPC is altered to Section 304 Part II IPC r/w 34 IPC and they are sentenced to the period already undergone alongwith a fine of Rs.3000/- each & in default, to further undergo one year's S.I. For rest of the offences u/ss.307/34, 325/34, 324/34 and 323/34, they are sentenced to the period already undergone. However, the fine imposed & sentence awarded in default of payment of fine under these sections is maintained. They shall be set at liberty forthwith, if not required in any other case, on depositing the amounts of fine awarded by this Court and the trial Court on different counts. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS