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2003 Supreme(Raj) 315
Rajasthan High Court, Jaipur Bench
Honble F.C. BANSAL, J.
Ram Niwas & Bhanwarlal - Appellant
Versus
State of Rajasthan - Respondents
S.B. Criminal Appeal No. 428 of 1984
Decided On : April 16, 2003
N.C. Choudhary, for Appellants S.S. Rathore, Public Prosecutor for State
Headnote:Penal Code, Sec. 304 Part-I/34, 323, 325/34, – Non-explanation of injuries sustained by the accused appellant – Held – Non-explanation of injuries by the prosecution does not affect the prosecution case where the injuries sustained by the accused-appellant are minor and superficial or where the evidence is so clear and cogent; so independent and disinterested, so probable, consistent and trustworthy that it far out weighs the effect of omission on the part of the prosecution to explain the injuries – Altered conviction from 304 Part-I/34 to Sec. 325/34 and 323 I.P.C. (Paras 28, 33)
No charge under Section 302 IPC was framed against the appellants. Instead charge under Section 304 Part I read with 34 IPC was framed against the appellants the appellants have been convicted by the trial Court under Section 304 Part I read with 34 IPC. Thus it is clear that the appellants had no intention to cause death of Ganga Bishan. In view of the facts of the case I am of the opinion that there was no common intention of the appellants to cause such bodily injury on the person of the deceased which was sufficient in ordinary course of nature to cause death or likely to cause death. (Para 29)
The appellants are liable under Section 325 read with 34 IPC and not under Section 304 Part I read with 34 IPC. They have also been found guilty under Section 323 IPC for having caused simple injuries on the person of Rameshwar by the trial Court and in my opinion also the appellants have rightly been convicted for this offence. (Para 31)
Ram Niwas and Bhanwarlal each u/Sec. 304 Part 1/34 IPC 10 years rigorous imprisonment and a fine of Rs. 2,000/- and in default of and in default of payment of fine to further undergo 6 months rigorous imprisonment.
u/Sec. 323 IPC Fine of Rs. 1,000/- and in default to further undergo 3 months simple imprisonment.
(2). Briefly stated the prosecution case, is that on Nov. 1, 1982 at 2:00 PM `parcha-bayan Ex.P5 of PW.4 Smt. Kajodi wife of Ganga Bisan aged about 50 years by caste Sadhu, resident of Village Manda was recorded by PW.8 Govind Singh, ASI, Police Station Kekri District Ajmer in General Hospital, Kekri wherein Smt. Kajodi stated that yesterday her son Rameshwar had gone to till his field with plough. In the afternoon Rameshwar released his bullocks and started taking his meals. His bullocks entered into the field of Ram Niwas who is her brother-in-law (Devar) and started grazing there. In that field Smt. Kailashi, daughter-in- law of Ram Niwas also was grazing her buffaloes. Smt. Kailash started abusing Rameshwar but he did not reply. Rameshwar took his bullocks back to his field. In the evening when her husband Ganga Bisan went to Chaarbhuja temple he was abused by Bhanwarlal, Dhan Raj son of Ram Niwas and Ram Niwas son of Dwarka Dass. Today at about 10:00 AM she and her husband were going for grazing their cows. When they reached behind `Gadh all the aforesaid persons armed with lathies came there. They stopped her husband and gave beating to him with lathies. On hearing her and her husbands hue and cry her son Rameshwar (PW.5) who was ploughing his field situated near the place of incident reached on the spot. When Rameshwar tried to rescue them he was also beaten up by the assailants. It was also stated by Smt. Kajodi in her parcha-bayan Ex.P5 that they were saved by Ratan Singh Rajput, Rameshwar Brahmin and Bheru Gurjar. While intervening Bheru also sustained injury on his forearm. Because of beating her husband and son became unconscious. Thereafter she took them to hospital and got them admitted. On the basis of the parcha- bayan Ex.P5 SHO Police Station Kekri registered a case under Sections 323 and 341 IPC and investigation commenced. Formal FIR is Ex.P.8. In the course of investigation Investigation Officer Govind Singh, ASI (PW.8) inspected the place of occurrence and prepared site-plan Ex.P.1. Both Ganga Bisan and his son Rameshwar were medically examined by PW.2 Dr. L.K. Bhargava, Medical Officer-in-charge, Government Hospital, Kekri and he prepared injury reports Ex.P.2 and Ex.P3 respectively. Ganga Bisan expired on Sept. 7, 1982 in the hospital. PW.2 Dr. L.K. Bhargava conducted post-mortem examination on the dead body and he prepared post-mortem report Ex.P.4. On the death of Ganga Bisan case was converted from Section 323 & 341 IPC to that of 302 IPC and the investigation proceeded further. Inquest report of the dead-body of Ganga Bisan Ex.P.13 was prepared on Nov. 4, 1982. Safa (turban) and shirt which Ganga Bisan was wearing at the time of incident there seized and sealed by the Investigating Officer vide Ex.P.6. Dhoti belonging to injured Rameshwar was also seized and sealed vide Ex.P.7 statements of the witnesses under Sec. 161 Cr.P.C. were recovered. Lathies were recovered from their house and at their instance vide Ex.P11 and Ex.P12 respectively. On completion of investigation a chargesheet was laid against both the appellants in the court of Judicial Magistrate, Kekri who committed the case to the court of learned Sessions Judge, Kekri. On transfer the file was received by learned Addl. Sessions Judge No.1, Ajmer. Co-accused Dhan Raj who was below 16 years of age, was challaned in Children Court.
(3). Learned Additional Sessions Judge framed charges under Sections 304 Part I read
