This Criminal Appeal has been filed under Section 374 Cr.P.C. against the judgment dated 12.5.2017 passed by learned Additional Sessions Judge,
Karauli in Sessions case No. 34/14 (81/14) (in FIR No. 35/14) registered at P.S. Langra, Dist. Karauli, whereby the learned Trial Court has convicted
and sentenced the accused appellant as under:-
Under Section 323 I.P.C. : sentencing to 1 year S.I. and fine of Rs. 1000/- and in default to further undergo sentence of 1 (One) Month S.I.
Under Section 302 I.P.C. sentencing him to Life Imprisonment and fine of Rs. 25000/- and in default to further undergo sentence of 1 (One) year S.I.
The case of the prosecution in nutshell is that complainant Meerabai (P.W.1) submitted a written report Ex.P.1 on 16.3.2014 at 3.15 p.m. to the
Station House Officer, Police Station, Langra, Dist. Karauli, and on the basis of which, an FIR Ex.P.2 was got registered at Police Station Langra,
Dist. Karauli, wherein it was stated that on the fateful day, i.e., 11.3.2014 at 1 p.m., her son Khushiram was constructing kotdi in the bada of buffalos.
Thereafter, some members of her family i.e. Munesh S/o Haricharan, Shirmohar S/o Ramcharan, Haricharan S/o Pacchu and Leela W/o Haricharan
along-with Munni W/o Shirmohar came at the place of incident having Lathi and danda in their hands and they started beating her son Khushiram.
During beatings when her son started quarreling, her husband Siyaram came to rescue but he too was beaten by accused persons. Shirmohar caught
hold of him, then Munesh gave lathi blow on his head. Her husband became unconscious and thereafter she reached at the spot. Few villagers namely
Ramjilal, Master Badri S/o Rambabu, Ramdayal reached there. They tried to rescue and thereafter Badri, Dayalu took injured to the Karauli hospital,
from where he was referred to Jaipur, where her husband died during treatment on 15.3.2014 at 10.20 a.m. Hence this report.
The police on the basis of the above report, registered the FIR No.35/2014 Under Sections 147, 148, 149, 323, 341,307 and 302 IPC. After
investigation, the police submitted the charge- sheet under Sections 341,323 and 302 I.P.C..
The learned trial court framed the charges against the accused appellant Under Sections 341, 323 and 302 I.P.C.. The accused appellant denied the
charges and pleaded not guilty.
The prosecution examined 20 witnesses and produced some documents to prove its case. In defence 6 witnesses were examined.
The learned trial court after hearing the parties, acquitted the accused appellant from the charge Under Section 341 IPC and convicted the accused
appellant and sentenced him as mentioned above, vide judgment dated 12/5/2017. Hence this appeal.
Learned counsel for the appellant has vehemently argued that the conviction of the appellant is against the facts and circumstances of the case, the
material and evidence available on record as well as the law applicable.
It is submitted that the FiR has been lodged after an inordinate delay. The incident has taken place on 11/3/2014 at 1.00 PM and Written Report
Ex.P.1 was submitted on 16/3/2014 at 3.15 PM, on the basis of which the FIR Ex.P.2 was got registered. No reasonable explanation has come on
record for lodging the FIR after such an inordinate delay. Thus, the conviction of the accused appellant cannot be sustained at all.
It is further submitted that P.W.1 Meera Bai is not an eye witness of the occurrence as she has stated that when the accused appellant was giving
beating to Siyaram and he has given 8 blow by lathi but as per the Post Mortem Report, he has received only 5 injuries on his body. She has further
stated that 4 persons came there to save him. P.W.3 Ramji lal, P.W.4 Phool Singh, P.W.5 Ram Dayal and P.W.6 Badari Lal, all of them reached
there after the incident. Therefore, the conviction of the accused appellant, based on the statement of P.W.1 Meera Bai is bad in eye of law. Thus
from the above, it is clear that she is not a trustworthy witness and she has tried to implicate the accused appellant. She has further admitted in the
cross examination that Ramji Lal, Ram Dayal and Phool Singh reached at the place of occurrence, after Siyaram become unconscious and the
accused appellant ran away. From this fact, it is also clear that she has tried to become an eye witness of the occurrence. Thus, in these
circumstances, the conviction of the accused appellant is bad in eye of law.
It is also argued that the learned trial court has placed reliance on the statement of P.W.2 Khushiram and convicted the accused appellant, whereas
P.W.2 Khushiram has been examined himself on 16/3/2014 and as per his injury report Ex.P.4, he has received only superficial injuries on his body,
which was simple in nature whereas the injuries have been received on 11/3/2014 and he would have been medically examined on the same day, i.e.,
on 11/3/2014. If the prosecution story be taken as it is, then the FIR would have been lodged on the same day. From this fact, it is clear that P.W.2
Khushiram is not an injured witness and no reliance can be placed on the testimony of this witness. Thus, the conviction of the accused appellant
cannot be sustained at all.
It is further argued that there are contradictions in the statement of P.W.1 Meera Bai and P.W.2 Khushiram and they are not corroborated to each
other. They have made improvements, contradictions and omissions in their statements. Thus, the conviction of the accused appellant cannot be
sustained at all.
It is stated that the learned trial court has not properly considered and critically examined the statements of P.W.7 Amar Lal and P.W.8 Bhanwar Lal,
who were the independent witnesses and who have been declared hostile. Thus, the conviction of the accused appellant cannot be sustained at all.
This evidence in the cross examination stated that the deceased has received only one injury on heard. Thus, from his statement, it is clear that if the
incident would have taken place as alleged by the prosecution and the deceased would have received more injuries then the FIR would have been
lodged immediately. Thus, the conviction of the accused appellant cannot be sustained at all.
It is further submitted that the investigation has been started prior to lodging of the FIR, which can be verified from the statement of P.W.17
Kanwarpal, who was ASI of Police Station Langra, who received the information from SMS Hospital, Jaipur on 15/3/2014 and after receiving the
information, he reached to SMS Hospital, Jaipur and started investigation and he further stated that he has written this fact in ""Rojnamchan"", which is
Ex.P.16 and after reaching at SMS Hospital, he prepared 'Panchayatnama' which is Ex.P.5. From this fact, it is clear that the investigation is not in
accordance with the law. Thus, the conviction of the accused appellant cannot be sustained at all.
It is argued that P.W.18 Dr. Manisha Sharma examined P.W.2 Khushiram. As per the statement of this witness, P.W.2 Khushiram has received
simple injuries on his body. From this fact, it is clear that no such incident has taken place, as alleged by the complainant. Thus, the conviction of the
accused appellant cannot be sustained at all.
It is further argued that P.W.19 Dr. Chain Singh, who was Medical Jurist in General Hospital, Karauli, has stated in cross examination that if any
injured person admitted in the hospital then the information is to be given to the police as police chowki is situated in the hospital itself. As per the case
of the prosecution, no information/ report has been given at Police Station Karauli. Thus, the conviction of the accused appellant cannot be sustained
at all.
It is further argued that P.W.20 Ratan Singh, who is Investigation Officer, has specifically stated in his statement that he has recorded the statements
of the witnesses, during trial under Section 161 Cr.P.C. From this fact, it is clear that the witnesses in their statements have made improvements,
contradictions and omissions. Thus, the conviction of the accused appellant cannot be sustained at all.
It is further submitted that from the written report Ex.P.1, it is clear that P.W.2 Khushiram was constructing 'Kotari' in the Bada then accused
appellant along-with Shirmohar, Haricharan, Leela and Munni came along-with Lathi and Danda in their hands and started giving beatings to
Khushiram then Siyaram, husband of complainant came to save them then Shirmohar caught Siyaram and Munesh gave lathi blow on his head. It
seems that this story has been concocted by the complainant. If the incident has taken place, as stated by her then the FIR would have been lodged
immediately on the same day i.e. on 11/3/2014 and they would have examined medically on the same day but the complaint has been lodged on
16/3/2014 and P.W.2 Khushiram himself has been examined on 16/3/2014. From the above fact, it is clear that the accused appellant has been
implicated falsely in this case. Thus, the conviction of the accused appellant cannot be sustained at all.
It is further argued that the learned trial court has acquitted the accused appellant from the charge u/s 341 IPC. From this fact it is clear that the
accused appellant has not obstructed or prevented Khushiram in constructing his 'Kotari'. Thus, the conviction of the accused appellant cannot be
sustained at all.
It is further argued that when the genesis of the occurrence itself is not proved by the prosecution and the accused appellant has been acquitted then
the conviction of the accused appellant u/s 302 IPC is also not in accordance with the law. Thus, the conviction of the accused appellant cannot be
sustained at all.
It seems that the deceased Siyaram has received the injuries in some other incident and there was some dispute between the accused appellant and
the complainant. Thus, the complainant has concocted the story and implicated the accused appellant in a false case. Thus, the conviction of the
accused appellant cannot be sustained at all.
It is further argued that the learned trial court has neither properly appreciated nor critically examined the statements of the prosecution witnesses and
failed to consider those parts of their statements, which are favourable to the accused appellant and thus, the conviction of the accused appellant is
bad in law.
It is further argued that the learned trial court did not give the accused appellant, proper opportunity of hearing and producing the evidence on the point
of sentence as per the mandatory provision of Section 235 Cr.P.C.. Thus, the sentence imposed upon the accused appellant is bad in law.
It is stated that the learned trial court has not properly considered the facts and circumstances favourable to the accused appellant and thus, the
conviction is liable to be set aside.
It is further stated that all the questions u/s 313 Cr.P.C. on the basis of which the accused appellant has been convicted, were not put to him. Thus,
their defence has been very much prejudiced.
It is further submitted that the defective charge was framed against the accused appellant due to which the defence has been very much prejudiced.
It is also submitted that the learned trial Court committed error in not considering the material omissions and contradictions appeared in the statement
of prosecution witnesses and also in discarding defence version. Findings of the learned trial Court are erroneous in the eyes of law. Therefore, the
judgment is neither legal nor proper or correct, but during arguments learned counsel appearing for all the appellant has submitted that in alternate on
the facts and circumstances, if the offence alleged is found proved against the appellant, it falls under Section 304 Part-I of IPC and not under Section
302 of IPC.
On the other hand, learned Public Prosecutor appearing for State, relied upon the discussion contained in the judgment of the court below in support of
the prosecution case with the submission that the appellant was rightly convicted and there was no reason to interfere with the same. He has also
opposed the prayer made on behalf of appellant stating that in furtherance of the common intention of co- accused persons, appellant gave lathi blow
on vital part of the deceased, which caused the death. Due to act of the appellant, an innocent person has lost his life. The appellant has assaulted the
deceased by entering in his field which shows his intention. He was having lathi in his hand and used it as a weapon of assault and gave blow on the
vital part of the body of the deceased, resulting in his death, therefore, his act is very well covered under Section 302 of IPC and he is not entitled for
any leniency.
However, learned Public Prosecutor fairly admitted that there is no evidence on record to establish premeditation, that the incident took place at the
spur of time.
We have heard learned counsel for the parties at length and perused the impugned judgment and the materials placed on record and considered the
alternate prayer made by the accused appellant to alter the conviction from offence under Section 302 IPC to offence under Section 304 Part-I IPC
as the prosecution case rests on eye witnesses account.
To bring home the guilt of the accused, the prosecution case rests on evidence of PW-1 Meera Bai and PW-2 Khushiram who are eye witnesses of
incident.
PW-1 Meera Bai in her statement has deposed that her son Khushiram was constructing Kotdi in his bada where 4-5 accused persons came and
started beating him. Her husband Siyaram came to rescue but he too was beaten. Accused Munesh gave lathi blow to her husband and due to this
lathi blow, he fell down on earth. Total five blows were inflicted. Four persons came there to save him. Ramdayal and Badri took my husband to
Karauli hospital, from where, he was transferred to Jaipur Hospital. During treatment, after four days, my husband died.
In her cross-examination, she has deposed that Munesh, Haricharan, Shirmohar, Munni and Lila started beating with her husband and she narrated
entire incident to the SHO, P.S. Langra. Her husband omitted after 20 minutes of beating. She has further deposed that scuffle took place on the issue
of constructing Kotdi. The dispute was between Khushiram and Munesh. Munesh was son of her Jeth. His house was adjacent to her house.
PW-2 Khushiram, another eye witness, who was examined, has deposed that while he was constructing kotdi in the bada, accused Munesh came
there and tried to stop the construction. On his opposing this act, Munesh came with lathi and inflicted injury on his right shoulder and left hand. During
this scuffle, his mother and father came to rescue him, thereafter other accused persons started beating my father. Munesh inflicted three lathi blows
on the head of his father while standing and two blows while he fell down on earth. Thereafter Munesh ran away on seeing other villagers. Ex.P-4 is
the injury report of injured Khushiram. From the perusal of Ex.P-4, it is crystal clear that injuries sustained by PW-2 Khushiram are only superficial
injuries and simple in nature as well.
In the cross-examination, this witness has specifically deposed that he was medically examined on the same day and he disclosed the entire story of
the fight to the doctor regarding beating with his father. He has also deposed that during treatment, he could not contact the police. His father and
mother came at the place of incident after hearing hue & cry.
Before we take note of the testimony of the above eye witnesses, it will be necessary for us to notice the medical evidence.
The prosecution witness Dr.Anil Solanki (PW-15), in his statement, has specifically deposed that on 16.3.2014, when he was working as Medical
Jurist at SMS Hospital, Jaipur, he has examined the dead body of deceased Siyaram S/o Bhagirath Meena and found following injuries on his person
when translated into English reads as under:-
(1) Abrasion 2x1 cm right elbow (2) Abrasion 3x1 cm right zygomatic region (3) Abrasion 2x0.5 cm ;right mandibular region (4) Bruise 4x3 cm left
temporal parietal region with bruise blackish bluish & greenish colour (4-5 days) Above injuries are ante mortem in nature and caused by blunt object.
In the cross-examination, Dr.Anil Solanki (PW-15) has specifically stated that the deceased has received only one injury on his head.
Another prosecution witnesses Dr.Manish Sharma PW-18 who was posted at Primary Health Centre, Langra on 16.3.2014, has specifically deposed
that he has got medically examined injured Khushiram (PW-2) who sustained following injuries on his body:
(1) Pain & Swelling in right shoulder Gen. Blunt (2) Pain & Swelling on both thumb Gen. Blunt (3) Pain & Swelling on left hand Gen. Blunt In his
statement, he has deposed that injuries sustained by Khushiram are simple in nature and he prepared injury report Ex.P-4.
Similarly, the prosecution witness Dr.Chen Singh (PW-19) was also examined and he in his statement has categorically stated that while he was
working as Medical Jurist in General Hospital, Karauli, on 11.3.2014 at 3.30 pm, Siyaram S/o Bhagirath was got admitted in hospital in an inured
condition and on tha same day, he was referred to SMS Hospital, Jaipur.
In the cross-examination, Dr.Chen Singh (PW-19) has deposed that if any injured person is admitted in the hospital, then the information is to be given
to the police. He has also stated that Police Chowki is situated in the hospital itself.
Moreover, PW-20 Ratan Singh, who was Investigating Officer, has specifically stated in his statement that he has recorded the statements of the
witnesses during trial under Sec.161 Cr.P.C. Though PW-7 Amar Lal and PW-8 Bhanwar Lal, who were the independent witness, have been
declared hostile, but these independent witness have deposed that quarrel took place between accused Munesh and Khushiram on the issue of
constructing a ""kotdi"" in the adjacent open piece of land (bada) wherein deceased Siyaram sustained injuries on head.
It is manifest from the evidence of the prosecution witnesses that there was dispute of ownership of adjacent open piece of land between the
appellant and the family members of deceased and the fight took place on the issue of construction of a ""kotdi"" in a bada. The genesis of the
occurrence was that while family members of complainant party were constructing a kotdi in the bada, then family members of accused party came at
the place of incident and started beating to Khusiram and on raising hue & cry, father of Khusiram came at the spot. Thereafter, accused Munesh
inflicted lathi blows on the head of deceased Siyaram and participation of accused-appellant in the incident is established on the basis of statement of
prosecution witnesses. As per post mortem report of Siyaram (Ex.P-13), following injuries were found on his person :
Injury present over the body at the time of PMR: A.
(1) Abrasion 2x1 cm right elbow lateral aspect blackish brownish with hard scab (2) Abrasion 3x2 cm right zygomatie region blackish brownish with
hard scab (3) Abrasion 2x0.5 cm ;right mandibular region blackish brownish with hard scab (4) Bruise 4x3 cm left temporal parietal region with bruise
blackish brownish colour (4-5 days) Above injuries are ante mortem in nature and caused by blunt object.
B. On sealed glass bottle containing blood soaked dry pieces (as designed by I/O police) OPINION The cause of death is ""COMA"" brought about a
result of ante mortem head injury which is sufficient to cause of death in ordinary cause of nature and (caused by blunt object).
In the instant case, though prosecution witnesses who have been examined as above, are interested but not cooked up witnesses. Their version is
consistent and nothing has been elicited in cross-examination to shake their testimony. Thus the testimony of prosecution witnesses deserve
acceptance and no adverse inference can be drawn because some of them have turned hostile. Their presence at the scene of occurrence cannot be
doubted.
On consideration of the entirety of the evidence, it can safely be concluded that the occurrence took place in the heat of the moment and the assault
was made without any premeditation at the spur of time. The fact that the appellant may have lathi in his hand, is not sufficient to infer an intention to
kill, because usually availability of lathi in a house is very common and it cannot be treated as an arm all the time. Taking note of the genesis of the
occurrence and the single assault by the appellant, coupled with the duration of the entire episode for 1 ½ to 2 minutes. Had there been any intention
to do away with the life of the deceased, nothing prevented the appellant from making a second assault to ensure his death, rather than to have run
away. The intention appears more to have been to teach a lesson by the venting of ire by an irked neighbour, due to constructing kotdi in the bada. But
in the nature of weapon used, the assault made on the head in a sudden fight, knowledge that death was likely to ensue will have to be attributed to the
appellant.
On the basis of analysis of the evidence of prosecution witnesses made above, it is found cogent, credible and truthful. No reason appears to have
been made to rope an innocent person by prosecution witnesses, particularly when the ocular evidence is corroborated by the medical evidence. In the
present case, the incident took place unpremeditated, appellant did assault in a sudden fight at the spur of the moment, which the accused appellant
Munesh cannot be said to have taken any undue advantage or acted in a cruel or unusual manner. The head injury has been attributed to none other
than accused appellant Munesh S/o Haricharan, therefore, his offence would not be culpable homicide amounting to murder but the same would be
culpable homicide not amount to murder with both intention and knowledge of the fact that injury which he caused was likely to result in death of
Siyaram. Therefore, offence of the accused appellant would be punishable under Sec.304 Part-I IPC and not under Section 302 IPC.
Mr.Rinesh Gupta, Advocate has further contended that doctor who conducted postmortem has specifically stated that there is one injury on the head
of the deceased. Thus, we should convert the offence to under Sec. 304 Part I IPC.
In the result, we partly accept the appeal and alter the conviction of accused-appellant Munesh S/o Haricharan for offence under Sec. 302 of the IPC
to one under Sec. 304 part I of the IPC. Having held that accused-appellant Munesh is guilty of offence under Sec. 304 Part I of the IPC, we award
him sentence of rigorous imprisonment of 07 years with fine of Rs.50,000/-; and in default of payment of fine, he has to undergo simple imprisonment
for six months. It is further ordered that out of aforesaid fine amount, Rs. 40,000/- shall be paid to the wife of deceased Siyaram as compensation.
The sentence imposed in the appeal is modified in the above terms. The appeal is accordingly allowed in part.
Keeping, however, in view of the provisions of Section 437-A of the Code of Criminal Procedure, appellant Munesh S/o Haricharan is directed to
forthwith furnish a personal bond in the sum of Rs.20,000/-, and a surety bond in the like amount before the Registrar (Judl.) of this court, which shall
be effective for a period of six months undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the
appellant, on receipt of notice thereof, shall appear before the Supreme Court.
