[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- JUDGMENT CRIMINAL APPEAL No. 806 of 2004 POKAR RAM & ORS. V/S STATE Date of Judgment : 16.09.2009 HON'BLE SHRI AM KAPADIA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. Mr. SURESH KUMBHAT, for appellants. Mr. K.R. BISHNOI, PP BY THE COURT (PER HON'BLE THANVI, J.): 1.This appeal is directed against the judgment of the learned Addl. Sessions Judge (Fast Track), Balotra camp at Barmer dated 31.07.2004, whereby he convicted all the three accused appellants as under: Accused U/s Sentence Fine In Default of payment of fine Pokar Ram 302 IPC Life imprisonment Rs.5000 6 months R.I 341 IPC 1 month R.I. Rs.500 15 days S.I. The sentences were ordered to run concurrently. Pura Ram & Uma Ram 323 IPC 1 year R.I. Rs.1000 each 3 months S.I. 2.Facts leading to this appeal are that on 14.12.2002, Nanga Ram lodged a written report (Ex.P/2) at the Police [2] Station Sedwa, alleging therein that his she-goats entered in the field of Pura Ram and when his brother deceased Dharma Ram went to bring back she-goats, all the three accused appellants Pura Ram, Uma Ram and Pokar Ram came in front of him and gave beatings to his brother deceased Dharma Ram. Accused Pokar was having lathi who inflicted it on the head of deceased Dharma. On seeing the incident, Jetha Ram (PW8) came there for his rescue and he also received injuries on his upper right eye and right finger. Thereafter, on hearing cries, Purkha (PW11), and Rau Ram (PW4) came on the spot and on seeing them the accused ran away. Upon this report, police registered a case under Sec. 341 and 323 IPC but after death of deceased Dharma on 16.12.2002 offence under Sec.302 IPC was added. On the date of incident i.e. 14.12.2002, a cross FIR No. 107/02 (Ex.D/12) was also lodged by Pura Ram at Police Station Sedwa, District Barmer in which it was alleged that on the day of incident Jetha Ram (PW8), deceased Dharma Ram, Nanga (PW2) and Uda Ram (PW3) came with lathis and used filthy language and incident took place in which accused Bhera Ram received head injury which was inflicted by Jetha Ram and blood oozed out and Uma and Idan came to rescue him. The incident is said to have taken place on account of hot exchange of words with regard to grazing [3] of she-goats in the field of Pura by the deceased and his brother. Police also registered a case on the basis of this report, which is pending trial. On completion of investigation, police filed challan in both the cases. Since the offence under Sec.302 IPC was triable by the Court of Sessions, therefore, the present case was committed for trial. 3. The learned trial Judge framed charges against the three accused appellants. After hearing arguments on charge, accused appellant Pokar Ram was charged under Sec.323, 341 and 302 IPC and rest of the accused appellants Pura Ram and Uma Ram were charged under Sec. 323, 341 and 304 read with Sec.34 of IPC to which they pleaded not guilty. The prosecution examined 16 witnesses and produced 29 documents. Accused produced 13 documents in defence with regard to cross FIR No.107/02 of Police Station Sedwa. They also produced 3 witnesses in defence. After hearing arguments, the learned trial Judge convicted the accused appellants as above. 4.Learned counsel for the accused appellants has confined his arguments with regard to the conviction of the accused under Sec. 302 of the IPC. According to him, the incident is said to have taken place in the field of accused [4] appellant Pura Ram where deceased and his brother came to graze she-goats and during hot exchange of words sudden fight took place between the parties, therefore, according to him, there was no intention on the part of the accused to kill deceased Dharma Ram and the case as per his submission does not fall beyond the purview of Sec. 304 Part II of the IPC. According to him, accused Pokar ram is in custody for last about six years, therefore, the custodial sentence will meet the ends of justice. 5.Per contra, learned Public Prosecutor has supported the judgment of the trial Court. 6.We have re-appreciated the evidence on record and also taken note of the cross case registered at the instance of accused appellant Pura Ram vide Ex.D/12 being FIR No.107/02 as is stated by the learned trial Court in Para 42 of the judgment and also from the evidence of prosecution witnesses Kesa Ram (PW1) and Nanga Ram (PW2), the place of incident is the field of accused appellant Pura Ram and deceased Dharma Ram had entered in the field to bring back his she-goats where all the three accused inflicted lathi blows on him. As per Site-plan Ex.P/1, the field belongs to accused appellant Pura Ram. From the evidence of these witnesses, coupled [5] with the testimony of other witnesses; viz., Jetha Ram (PW8), Goma Ram (PW9) Purkha Ram (PW11) and Rau Ram, it was Pokar Ram who inflicted lathi blow on the head of deceased Dharma Ram. This injury has been said to be the cause of death as per the testimony of Dr. S.K. Bhandari (PW7), who conducted the postmortem. When this doctor was cross examined, he stated that had Dharma Ram received proper treatment, he would have been saved. The testimony of these witnesses leads to irresistible conclusion that it was the deceased who entered in the field to take his cattle back which were causing damage to the crop of the appellant and in hot exchange of words the incident took place and after two days of the incident the deceased died on account of the injury received on his head. 7.Taking into consideration the submissions advanced by the learned counsel for the appellants as also the evidence on record, we are of the opinion that this is a case which falls under Exception IV of Sec. 300 of the 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. That apart, the accused were [6] having no intention that by inflicting lathi blows deceased Dharma Ram will die. At the most, Pokar Ram had the knowledge that injury on the head might result in death as it was on the vital part. Thus, the present case travels not beyond the purview of Sec.304 Part II of the IPC which punishes offender for the offence of culpable homicide not amounting to murder. As regards other two accused; viz., Pura Ram and Uda Ram, they have been sentenced only under Sec. 323 of the IPC with one year's imprisonment but looking to the circumstances under which the offence has been committed, this sentence part is excessive and the custodial sentence of the accused shall meet the ends of justice. 8.Consequently, we allow this appeal in part. While maintaining the conviction of the accused appellants Pura Ram and Uda Ram under Sec.323 of the IPC, they are sentenced to the period already undergone, however, sentence of fine is maintained, which is Rs.1000 and in default to undergo three months' simple imprisonment. As regards accused appellant Pokar Ram, his conviction under Sec. 302 of the IPC is altered to Sec.304 Part II IPC and he is sentenced to the period already undergone which is about 5 years 8 months, however, the sentence of fine is maintained, which is Rs.5000 and in default six [7] months rigorous imprisonment. The conviction and sentence of appellant Pokar Ram under Sec. 341 IPC with one month's imprisonment and fine of Rs.500 and in default to undergo 15 days simple imprisonment is maintained. 9.Accused Pura Ram and Uma Ram are on bail. They shall deposit the fine within a period of one month from today, else they will undergo the sentence awarded in default of payment of fine. 10.Accused Pokar Ram is in jail and since both the sentences under Sec. 302 & 304 IPC are to run concurrently, therefore, he be set at liberty forthwith if not required in any other case on deposit of fine of Rs.5,000 under Sec.302 IPC and of Rs.500 under Sec. 341 of the IPC, else he will serve out the sentence in default of payment of fine with six months rigorous imprisonment and 15 days simple imprisonment respectively. ( DEO NARAYAN THANVI ),J. ( AM KAPADIA ),J. jpa/