1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Bhola Ram & Ors. vs. The State of Rajasthan. D.B.Cri. Jail Appeal No.563/2002 Under Section 374 (2) Cr.P.C. against the judgment and conviction dated 22.07.02 passed by the Addl. District & Sessions Judge (Fast Track), Jalore, in Sessions Case No.78/2001 (20/2001) . Date of Judgment: 25thth July, 2007. PRESENT HON'BLE MR.JUSTICE BHAGWATI PRASAD HON'BLE MR.JUSTICE MUNISHWAR NATH BHANDARI Mr.Dhirendra Singh for the appellant. Mr.JPS.Choudhary, Public Prosecutor. Mr.Pradeep Shah for the complainant. BY THE COURT : (PER HON.MR.BHAGWATI PRASAD,J.)- The present appeal has been filed by the accused appellants against the decision of the learned Addl. District & Sessions Judge (Fast Track), Jalore in Sessions Case No.78/2001 (20/2001) dated 22nd July 2002. 2 Briefly stated , the prosecution story was given in the first information report, Ex/P/1, at Police Station Sayala by Uttam Singh, PW/1. According to the story given in the first information report, on 21.02.01 at about 5.30 PM the first informant was going from Purani Abadi to the temple of Mahadevji and at that time he was accompanied by Bhopal Singh, deceased. At that time on the way the accused Nimba Ram with axe, Bada Ram with club and Bhola Ram with knife obstructed their way. There was some altercation . Bada Ram assaulted the deceased Bhopal Singh and himself with knife. Bhopal Singh sustained injuries. Nimba Ram caused axe blow on Bhopal Singh. By seeing the incident he tried to rescue himself. Mohan Singh s/o Laxman Singh came to intervene. He made his escape from the scene of occurrence, otherwise he would have been killed. On the above information, FIR No.21/2001 was registered under Section 302 IPC. After investigation charge sheet was filed against the accused Bhola Ram under Section 302 IPC. The case was committed to the court of Sessions, from where it was made over to the trial court where charge was framed against Bhola Ram under Section 302 IPC. He denied the charge and claimed to be tried. At the trial , after the examination of four witnesses, an 3 application under Section 319 Cr.P.C. was filed and being ordered accused Nimba Ram and Bada Ram were added as accused persons. Charges under Section 302/34 IPC, after taking cognizance, was framed against them. The accused denied charges and claimed trial. At the trial, 13 witnesses were examined. 20 documents were exhibited. The accused were examined under Section 313 Cr.P.C. 8 defence witnesses were examined and 11 documents were exhibited in defence. After completion of trial, the trial court convicted the accused appellants as under :- Name of the accused Offence Sentence Bhola Ram U/Section 302 IPC Life imprisonment and a fine of Rs.1000/- and in default of payment of fine to further undergo two years' R.I. Nimba Ram U/Section 302 / 34 IPC Life imprisonment and a fine of Rs.1000/- and in default of payment of fine to further undergo two years' R.I. 4 Name of the accused Offence Sentence Bada Ram U/Section 302 / 34 IPC Life imprisonment and a fine of Rs.1000/- and in default of payment of fine to further undergo two years' R.I. The trial court found that the testimony of injured eye witnesses, first informant PW/1 Uttam Singh and PW/2 Mohan Singh, named in the first information Report are sufficient to sustain the case of the prosecution against the accused appellants and in that background the accused appellants were convicted and sentenced as aforesaid . The learned counsel for the appellant, assailing the decision of the trial court, submitted that PW/1 Uttam Singh and PW/2 Mohan Singh, in the first information report have not stated the presence of accused Bada Ram. When confronted with the same in his cross examination, he stated that he reported this to the police but this does not find mention in Ex.P/1. According to the learned counsel for the appellant, when accused Bada Ram was not mentioned in the first information report to have been present, his implication in the court statement is not supported by the earlier 5 version of the witness. Similar is the statement of PW/2 Mohan Singh, who admits that he had not stated that Nimba Ram inflicted injury on the leg of Bhopal Singh by kulari after falling, in his earlier statement . Thus , according to the learned counsel, the participation of accused Nimba Ram and Bada Ram, according to the two eye witnesses, was not deposed before the police. Police, after investigation, filed final report against these two accused persons as they were not considered to be accused persons and, therefore, no charge sheet was filed against them. In the background that the police did not file charge against them and the two eye witnesses of the prosecution have, in their earlier statement, ignored to depose against these witnesses , the contention of the learned counsel for the defence was that when these witnesses have not stated before the police about the participation of Nimba Ram and Bada Ram, their implication is ruled out. Further, PW/2 Mohan Singh, in his cross examination, admits that he has not informed the police that Bada Ram caused any injury by lathi to Bhopal Singh and Uttam Singh. Thus, clearly a case of fabrication is available against these two accused persons. The learned counsel for the appellant further stated that Doctor in his statement has stated that injury to the deceased , which 6 are four in number, could be caused by one single weapon, i.e. knife. Thus the arguments of the learned counsel for the appellant is that looking to the number of injuries, the prosecution has tried to take advantage and has tried to implicate some accused persons than the ones who were actually involved, and in that view of the matter, the prosecution story in its entirety deserves to be rejected. The learned counsel further submitted that the implication of accused Bhola Ram have also been exaggerated by the prosecution. The witnesses have been examined in defence and they have in their statement stated that it was not a premeditated fight . In fact the deceased Bhopal Singh and Bhola Ram quarreled on a trifle matter . Bhola Ram wanted to assault Bhopal Singh and in this scuffle sustained injuries. In that view of the matter, in the background even if it is argued that it was Bhola Ram who caused injury to Bhopal Singh then it can be said that it was in the exercise of private defence that he caused injuries to Bhopal Singh , who was armed and was assaulting him. In that view of the matter, the case of the appellant falls within exception (1) of Section 300 IPC and he can at best be convicted under Section 304 Part -1 IPC. The learned Public Prosecutor, per contra, submitted that 7 participation of the two accused, Nimba Ram and Bhola Ram , having been deposed in court, the trial court believed their participation and in that background they can be said to have shared common intention with the accused Bhola Ram. Bhola Ram having caused injuries with knife his conviction under Section 302 IPC is sustainable. We have heard the learned counsel and have given our thoughtful consideration to the facts obtaining on record. . The name of accused Bada Ram does not find place in the first information report. Both the witnesses PW/1 Uttam Singh and PW/2 Mohan Singh in the police statement have not assigned any part to accused Bada Ram. It was only at the trial that he was assigned injury which was not to be found on the person of deceased. Police filed final report qua these accused persons. We are persuaded that this accused is entitled to get benefit of doubt. Accused Nimba Ram , similarly has not been assigned any participation in the police statement of PW/2 Mohan Singh. PW/1 Uttam Singh, in his police statement, assigns participation to Nimba Ram but he assigns no injury by him to himself. The injury 8 on PW/1 Uttam Singh is assigned to accused Bhola Ram. Nimba Ram having caused no injury to him and his participation having not supported by PW/2 Mohan Singh in the police statement, the case of accused Nimba Ram also is covered by suspicion. Because Doctor has stated that all the injuries to Bhola Singh could be caused by knife. Injury to deceased was caused by Bada Ram and in that background, it appears that there is over implication and in that background the participation of accused Nimba Ram is also considered to be doubtful. Both these accused persons Nimba Ram and Bada Ram deserves the benefit of doubt, and giving them benefit of doubt ,we hold that they are entitled to be acquitted of the charges levelled against them. Now we take up the case of accused Bhola Ram . The accused says that he had not assaulted deceased Bhopal Singh. They grippled and in that griple Bhopal Singh sustained injuries. The trial court has not believed the defence. Material witness cited by prosecution have not been probed and three of them have been produced in defence. They also support the defence version. Circumstantial evidence do not support the case against the accused. It only is in the nature that blood was found on the knife. Therefore, also the case against the accused persons in this 9 background gets weakened . It is not a case of premeditated assault. If from the facts we find that there is a probable right of private defence, we would grant the accused, benefit of doubt. In that background, when we see that the fight started all of a sudden and it was in the background where the accused felt threatened by the deceased that he caused injuries to the deceased and in that light, his case is covered by Exception 1 of Section 300 IPC. In that light, his conviction under Section 302 IPC is not held sustainable. However, intention can be attributed to him by the nature of the injuries and in that background we would consider it safe to convict him under Section 304 part -1 IPC. His conviction under Section 302 IPC is set aside, his life sentence also is set aside. He is instead convicted under Section 304 Part -1 IPC, he is sentenced to undergo 10 years R.I. and a fine of Rs.1,000/-. In the result, the appeal is partly allowed. The appeal of accused Bada Ram and Nimba Ram are allowed. Their conviction and sentences are set aside. They are on bail, their bail bonds are cancelled. Accused Bhola Ram is acquitted of charge under Section 302 IPC and instead, he is convicted under Section 304 Part-I IPC. 10 His sentence of life imprisonment is set aside and he is sentenced under Section 304 Part-1 IPC to undergo 10 years' R.I. and a fine of Rs.1,000/-. He is in jail, he should serve out his sentence. (MUNISHWAR NATH BHANDARI), J. (BHAGWATI PRASAD), J. L.George