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2006 Supreme(Raj) 1520
Rajasthan High Court, Jaipur Bench
Honble SHIV KUMAR SHARMA, J. Honble MOHAMMAD RAFIQ, J.
Om Prakash & Ors. - Appellant
Versus
State of Rajasthan - Respondents
D.B. Criminal Appeal No. 1107 of 2002
Decided On : May 18, 2006
Praveen Balwada, Hemant Gajraj, Suresh Dhenwal, Rohitash Chaudhary, for Appellants R.P.Kuldeep, A.K. Sharma, Public Prosecutor for State Anil Umpan, for Complainant
Headnote:Penal Code, Secs. 302, 148, 341/149, 302/149 – Vicarious Criminal liability in a case of single blow – Deceased and appellants were near relatives – Relations were cordial – Incident occurred suddenly on trifle matter – The main accused and the deceased fought freely and both sustained injuries – In the heat of passion inflicted single lathi blow on the head of deceased – Proved fatal – Held – There was no unlawful assembly of common object – Vicarious criminal liability cannot be fastened on other appellants u/S. 149 IPC – It was a case of single blow – Not behaved in cruel or unusual manner – He had knowledge that the blow was likely to cause death, even though he had no intention of causing death or such bodily injury as is likely to cause death – Offence is punishable u/S. 304 Pt. II I.P.C. (Paras 8 to 10)
Om Prakash :
u/S. 302 IPC:
To suffer imprisonment for life and fine of Rs. 5000/- in default to further suffer rigorous imprisonment for one year.
u/S. 148 IPC:
To suffer rigorous imprisonment for one and half year.
u/S. 341/149 IPC:
To suffer rigorous imprisonment for one month.
Murti Devi, Rajbala, Munni Devi, Saroj Devi and Leela Ram @ Murari:
u/S. 302/149 IPC:
Each to suffer imprisonment for life and fine of Rs. 2000/- in default to further suffer rigorous imprisonment for six months.
u/S. 148 IPC:
Each to suffer rigorous imprisonment for one and half year.
u/S. 341/149 IPC:
Each to suffer rigorous imprisonment for one month.
The substantive sentences were ordered to run concurrently.
(2). According to prosecution story on December 2, 2001 at 7.30 PM informant Hanuman (PW. 5) submitted a written report (Ex. P. 2) stating therein that on the said day around 6 PM as soon as his father Shimbhu Dayal came from the field, Om Prakash, Saroj, Bala, Murti, Munni, Puran and Leela Ram who were following Shimbhu Dayal dragged him out of the house and gave beating to him with lathis. While Shimbhu Dayal was taken to the hospital he died on the way. On that report a case for the offences under Sections 147, 148, 149, 323, 341, 452 and 302 IPC was registered and investigation commenced. Dead body of Shimbhu Dayal was subjected to autopsy, statements of witnesses were recorded by the police, necessary memos were drawn and the appellants were arrested. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Alwar. Charges under Sections 148, 452/149, 341/149, 302 alternatively 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 12 witnesses. In the explanation under Sec. 313 Cr.P.C., the appellants claimed innocence. Two witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.
(3). We have heard learned counsel for the parties and with their assistance weighted the material on record.
(4). Death of Shimbhu Dayal was undeniably homicidal in nature. As per post mortem report (Ex.P. 1) following antemortem injuries were found on the dead body:-
Swelling 15 cm x 10 cm x 1.5 cm left tempro occipital region of scalp.
In the opinion of Dr. B.K. Bajaj (PW. 1), who conducted autopsy on the dead body, the cause of death was coma due to intra cranial hemorrhage following head injury which was sufficient to cause death in ordinary course of life.
(5). At this juncture it will be appropriate to consider the injuries sustained by the accused party.
Appellant Munni vide injury report (Ex. D-4) received following injuries:-
1. Lacerated wound on Rt. side of forehead 2.5 x 0.7 x 0.2 size irregular laceration.
2. Injury & pain of Rt. side of back with abrasion on abdominal wall
Swelling Rt. side of 3 x 2 cm with no disclouration.
Abrasion abdominal wall 4 x 0.1 cm side pinkish red in colour.
Appellant Om Prakash vide injury report (Ex. D. 5) also received one swelling 2 cm on right interparietal region of scalp with complaint of pain.
(6). Informant Hanuman (PW. 5) was not the eye witness of the occurrence. In his deposition he admitted that while he was at village Kolida, he received the message about the incident on telephone. Mithlesh (PW. 9) deposed that when her father in law Shimbhu Dayal came from the field the accused came to her house and demanded explanation from Shimbhu Dayal as to why he hurled abuses to their children. Shimbhu Dayal then told th
