1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T State of Rajasthan Vs. Ghamanda & ors. (1) D.B.CRIMINAL APPEAL NO.283/1985 Ghamanda & ors. Vs. State of Rajasthan (2) D.B.CRIMINAL APPEAL NO.119/1985 against the judgment dt.10.4.85 passed by Sessions Judge, Balotra, Camp Barmer, in Sessions Case No.7/85. Date of Judgment: 14th May, 2009 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.S.S.Sharma, Public Prosecutor. Mr.Suresh Kumbhat, assisted by Mr.S.P.Joshi & Mr.B.L.Dudi, for accused respondents. Mr.B.K.Bhatnagar, for complainant. BY THE COURT : (PER THANVI J.) 1. These are the two appeals arising out of the judgment dt.10.4.85 of the learned Sessions Judge, Balotra, Camp Barmer, one filed by the State against 2 acquittal of five accused respondents u/s.302 IPC and the other filed by the accused against their conviction u/ss.147 & 304 part II IPC. For the offence u/s.147 IPC, each of the accused has been sentenced to undergo one year's R.I. with a fine of Rs.100/- & in default, to further undergo one month's S.I. and for the offence u/s.304 part II IPC, each of the accused has been sentenced to undergo four years' R.I. with a fine of Rs.400/- & in default, to further undergo four months' S.I. Both the substantive sentences were ordered to run concurrently. 2. Since both these appeals are against the same impugned judgment, therefore, they are being disposed-of by this common judgment. 3. Facts leading to these appeals are that on 15.1.85, Megha lodged the FIR at Police Station, Gudamalani, Distt.Barmer stating therein that five accused viz; Ghamanda, Rau, Daja, Bhura and Jesa, armed with lathis, came collectively in the midnight of `Makar Sakranti' at the dhani of Satta and assaulted Heera, who was sleeping there because it is alleged that deceased Heera was having illicit relations with Satta's 3 wife viz; Dami. With the help of torch, Megha recognized accused Ghamanda giving lathi blow on Heera and other accused also assaulted him. Heera fell down and he was tied with strings and brought to the `dhani' of Satta. Megha called Ridmal, Matta, Moda, Choutha and Laxman. By that time, Heera died. The Sarpanch was informed. The FIR of the incident was lodged. The police after investigation, challaned all the five accused u/ss.147 and 302/149 IPC. The case was committed to the Court of Sessions. The charges were framed against the accused Ghamanda u/ss.147 & 302 IPC and and rest of the accused u/ss.147 and 302/149 IPC, to which they pleaded not guilty. The prosecution examined 19 witnesses. The statements of the accused were recorded u/s.313 CrPC. They led no defence. After hearing the arguments, the learned trial Judge convicted the accused as above. 4. During the course of arguments, learned counsel for the accused produced death certificate of accused Ghamanda Ram, who died on 30.9.2008, to which the learned Public Prosecutor has not objected, therefore, the proceedings against him are bated in both the appeals. 4 5. With regard to the State Appeal against acquittal of the accused, learned Public Prosecutor submits that it is a case of intentional death, caused in a preplanned manner, therefore, the accused should have been convicted u/s.302 IPC instead of Section 304 part II IPC. Whereas learned counsel for the accused submitted that the learned trial Judge has rightly acquitted accused u/s.302 IPC. 6. We have re-appreciated the evidence in this regard and we concur with the view of the learned trial Judge that Heera died of homicidal death and there was no intention on the part of the accused to kill him because in the post mortem report, as proved by Dr.M.L.Meghnani, there is no mention that the injuries sustained by the deceased Heera were sufficient in the ordinary course of nature to cause death. However, Dr.Meghnani in his court evidence has said that these injuries were sufficient in the ordinary course of nature to cause death but the fatal injury was injury No.2, which is lacerated wound measuring 3cm x .5cm x .4cm on scalp on right parietal region. With regard to this injury, the doctor has said in the cross examination that 5 had there been proper treatment, the deceased could have been saved. That apart, the recovery has been made of lathis only. No sharp edged weapon has been recovered from any of the accused and the lathi blows were inflicted by all the accused conjointly resulting in 11 injuries on different parts of body of deceased Heera. When all the five accused have inflicted injuries with blunt object and deceased Heera could have been saved by the proper treatment, then it cannot be said that it was an intentional act of accused in causing death, particularly when these injuries have been inflicted by the accused on the ground that deceased Heera was having illicit relations with Dami w/o Satta. In view of this, we are not inclined to disturb the finding of the learned trial Judge with regard to conviction of the accused u/s.304 part II IPC and alter the same to Section 302 IPC. 7. Learned counsel for the accused does not want to question the conviction of the accused u/ss.147 and 304 part II IPC but he simply submits that the incident is 25 years' old. The principal accused Ghamanda, with whose blow deceased Heera died, has expired and the remaining four appellants have been convicted with the 6 aid of Section 149 IPC and the parties have also entered into the compromise because the marriage of complainant Megha's son has been done with the daughter of deceased Heera. Therefore, the accused should be sentenced to the period already undergone. 8. Looking to the facts, narrated above, we deem it proper to maintain the conviction of the accused u/ss.147 & 304 part II IPC and to reduce the sentence to the period already undergone, which is more than four months, especially under the circumstance that the accused were between 18 to 22 years of age at the time of commission of offence. Learned counsel for the complainant has also no objection about awarding quantum of sentence to the period already undergone on account of the compromise. 9. Consequently, the State Appeal filed against acquittal of accused u/s.302 IPC is dismissed and the appeal filed by the accused is partly allowed. While maintaining the conviction of the accused viz; Rau, Daja, Bhura and Jesa u/ss.147 & 304 part II IPC recorded by the learned Sessions Judge, Balotra, Camp Barmer, vide his judgment dt.10.4.85, they are 7 sentenced to the period already undergone. However, the sentence of fine awarded against each of them i.e. Rs.100/- u/s.147 IPC and Rs.400/- u/s.304 par II IPC is maintained, which they will deposit within one month from today, else the learned trial Judge shall issue warrant of arrest against them for undergoing the sentence in default of payment of fine on both the counts as awarded by the learned trial Judge. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS