1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T State of Rajasthan Vs. Ramu Ram & anr. (1) D.B.CRIMINAL APPEAL NO.95/1985 Ramu Ram Vs. State of Rajasthan (2) D.B.CRIMINAL APPEAL NO.292/1984 against the judgment dt.30.7.84 Passed by the learned Sessions Judge, Merta, in Sessions Case No.44/1983. 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.Sandeep Mehta, for accused Ramu Ram. BY THE COURT : (PER THANVI J.) 1. These are the two appeals arising out of the judgment of the learned Sessions Judge, Merta dated 30.7.84, whereby he acquitted accused appellant Ramu Ram of the offence u/s.302 IPC and accused Chothu Ram u/s.302 read with 34 IPC but convicted accused 2 Ramu Ram of the offence u/s.326 IPC and sentenced him to undergo 7 years' R.I. with a fine of Rs.1000/- & in default, to further undergo three months' R.I. and Chothu Ram of the offence u/s.323 IPC and sentenced him to undergo six months' R.I. with a fine of Rs.500/- and in default, to further undergo one month's R.I. Both the accused were also convicted of the offence u/s.447 IPC and sentenced to undergo one month's imprisonment and in default, to further undergo 15 days' imprisonment. Both the substantive sentences were ordered to run concurrently. 2. The State has filed this appeal against the judgment of acquittal of the accused u/s.302 IPC, whereas accused Chothu Ram has not filed any appeal but accused Ramu Ram has filed the appeal through Jail against his conviction u/ss.326 & 447 IPC. Accused Chothu Ram has remained in custody for more than six months during trial i.e. from 5.5.83 to 1.12.83 and thereafter he remained in custody in pursuance to the warrant issued by this Court for his non-appearance in appeal against acquittal filed by the State for the period from 9.3.86 to 12.12.86, as appears from the record of D.B.Cr.Appeal No.95/85 filed by the State against 3 acquittal. It seems that on account of remaining in custody for more than 15 months, respondent Chothu Ram has not filed any appeal challenging his conviction u/ss.323 & 447 IPC and sentence of six months and one month respectively. Now, there are two appeals against the impugned judgment of the learned Sessions Judge, Merta, one filed by the State against acquittal of the accused and another being D.B.Cr.Jail Appeal No.292/84 filed by accused Ramu Ram alone. 3. Both these appeals are against the same impugned judgment, therefore, they are being disposed-of by this common judgment. 4. The charge against the accused respondents Ramu Ram and Chothu Ram is that on 16.4.83 at 11.00 AM, they made criminal trespass in the field of Birda Ram and accused Ramu Ram inflicted axe blow on the left arm of deceased Kumbha Ram, whereby he died, which was the cause of death as opined by Dr.S.S.Kanodia. The death took place on 22.4.83 i.e. six days after the incident. The report of the incident was lodged on the same day by Teja Ram, brother of Virda Ram in whose field, the accused entered for cutting branches of 4 `Khejri' tree and on being obstructed, they inflicted injuries with axe and `Zai' on the person of deceased Kumbha Ram, who left from his field to rescue himself from the clutches of accused persons in the field of Virda Ram, he was assaulted. Upon this report, the police registered a case u/s.307 IPC and commenced investigation. During investigation, injured Kumbha Ram died. His post mortem was conducted vide Ex.P.10. Thereafter, the police filed challan against the accused Ramu Ram and Chothu Ram u/ss.323, 324, 326 and 302 read with 34 IPC. After hearing the arguments on charge, accused Ramu Ram was charged u/ss.302 & 447 IPC, whereas accused Chothu Ram was charged u/ss.302/34, 447 & 323 IPC. The prosecution examined 13 witnesses. The statements of the accused were recorded u/s.313 CrPC. They led no defence. Thereafter, the learned Sessions Judge convicted & sentenced the accused as above. 5. We have heard learned Public Prosecutor and the learned counsel for the accused Ramu Ram and have also re-appreciated the evidence brought on record. 6. So far as the State appeal against acquittal is 5 concerned, it appears from the FIR as well as the statement of the sole eye witness Chhotudi, PW 9 that incident took place on the petty matter of cutting branches of `Khejri' tree, where accused Chothu Ram was having `Zai' and Ramu Ram having axe in his hand. On being asked not to cut the branches of `Khejri' tree, the accused inflicted injuries. Since the injury was caused on the left arm of the deceased, which is not a vital part of the body and there was no serious motive to kill the deceased, the learned trial Judge has rightly held that in the absence of any intention or knowledge to kill deceased Kumbha Ram, accused Ramu Ram is guilty under Section 326 IPC. Since there are other injuries with blunt weapon, the learned trial Judge has also rightly held accused Chothu Ram guilty u/s.323 IPC. In our opinion, the appeal against acquittal of both the accused u/s.302 IPC lacks merit. 7. Since accused Chothu Ram, who has served out the sentence, has not filed any appeal against his conviction u/ss.323 & 447 IPC, therefore, we are confined to the Jail Appeal filed by accused Ramu Ram. According to the learned counsel, the accused respondent Ramu Ram has already remained in custody 6 during trial and in appeal for a period of more than two years, therefore, he should be sentenced to the period already undergone for the offence u/s.326 IPC in which he has been awarded seven years' R.I., as according to him, the incident is more than 26 years' old. 8. From the record, it appears that the accused Ramu Ram has remained in custody from 26.4.83 to 12.4.84 and from 30.7.84 to 10.7.85. Looking to the nature of the case and the long period of incident, we deem it proper that now ends of justice will be met, if the accused Ramu Ram is sentenced to the period already undergone for the offence u/ss.326 & 447 IPC. 9. Consequently, the State Appeal filed against acquittal is dismissed and the Jail Appeal of accused Ramu Ram is partly allowed. While maintaining his conviction u/ss.326 & 447 IPC recorded by the learned Sessions Judge, Merta vide his judgment dt.30.7.84, he is sentenced to the period already undergone. However, the sentence of fine awarded against accused Ramu Ram i.e. Rs.1000/- u/s.326 IPC and Rs.100/- u/s.447 IPC is maintained, which he will deposit within one month from today, else the learned trial Judge shall 7 issue warrant of arrest against him 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