Loola @ Basheer And Ors vs State Of Rajasthan

Vide this order above mentioned appeal as well as revision petition would be disposed of.

Prosecution story was set in motion on the basis of the statement of Bagdal. Bagdal stated in his statement that on 17.07.1985 at about 10:00 AM he

was going towards a shop to purchase Bidi. On the way, he met Loola. Suddenly, he (complainant) had started coughing and Loola complained that he

had coughed on seeing him(Loola). Complainant sat in front of the shop while coughing. After some time, Loola, Jormal and Samsa, armed with farsi

and gun, came there. Loola was armed with a farsi and gave a blow on the head of the complainant. The other two incited Loola that complainant be

done to death.

On the basis of the statement of the complainant, formal FIR No.172 was registered on 17.07.1985 at Police Station Sadar, Alwar under Sections 307

and 341 of IPC. On account of death of Bagdal, on the next day, offence under Section 302 was added in the FIR.

After completion of investigation and necessary formalities, challan was presented against accused Loola @ Basheer, Samsa and Jormal. Charge was

framed against the accused appellant under Section 302 IPC.

In order to prove its case, prosecution examined 11 witnesses during trial. Accused when examined under Section 313 Cr.P.C, after the close of

prosecution evidence, pleaded that they were innocent and had been falsely involved in this case. Accused did not examine any witness in their

defence.

Trial court vide judgment dated 03.02.1987 ordered the acquittal of accused Samsa and Jormal and convicted appellant Loola under Section 304 Part-

II IPC. Vide order of the even date, appellant Loola was sentenced to undergo 6 years rigorous imprisonment qua offence punishable under Section

304 Part-II IPC. Hence, appellant Loola has filed the appeal challenging his conviction and sentence as ordered by the trial Court, whereas, Nazroo

father of the complainant has filed the revision petition challenging acquittal of accused Samsa and Jormal and has prayed that the accused were liable

to be convicted and sentenced qua offence punishable under Section 302 IPC.

Learned counsel for the appellant Loola has submitted that the said appellant has been falsely involved in this case. Impugned judgment/order passed

by the learned trial court were liable to be set aside. Learned counsel has submitted that the accused and the deceased had no previous enmity. There

was no independent corroboration to the prosecution story as the witnesses examined during trial are the relative of the deceased. Recovery of the

weapon was falsely foisted on accused Loola after 17/18 days.

Learned State counsel has opposed the appeal filed by the appellant Loola. Learned State Counsel has further submitted that so far as the petitioner

Nazroo and accused Samsa and Jormal are concerned, they have died.

As per the prosecution story, accused had murdered Bagdal. FIR in the present case was registered at the instance of Bagdal. A perusal of the FIR

reveals that the informant Bagdal had stated that he had been given farsi blow on his head by accused Loola. No specific overt act was attributed to

accused Samsa and Jormal.

Since, accused Samsa and Jormal have already died, only question that requires to be examined by this Court is with regard to the involvement of

accused Loola in the crime.

Complainant/deceased in his statement before the police had stated that he had been inflicted farsi blow on his head by Loola.

To the similar effect are the statements of the eye witnesses PW-1 Hazra, PW-2 Rahman, PW-3 Ayub and PW-4 Mithoo.

PW-11 Dr. P.S. Agarwal deposed that on 17.07.1985 he had medically examined injured Bagdal and had found the following injuries on his person:-

Incised wound 4 X ¾ cm X muscle deep on scalp just on left side in sagital plain on parietal area to frontal area with bleeding.

Bruise faint 4 X 2 cm on left fore- arm lower part ulna side with slight swelling.

He further deposed that injured Bhagdal died on 18.07.1985 at about 2:30 AM and he conducted postmortem examination on the dead body of

Bhagdal. He proved the postmortem report Exhibit P-23 Cause of death of the deceased was head injury with fracture of skull with compression of

brain and hemorrhage.

Thus, so far as the ocular version with regard to the participation of accused Loola in the crime is concerned, the same is duly corroborated by

medical evidence.

The next question that requires consideration is as to whether it can be said to be a case falling under Section 302 IPC or under Section 304 Part-II

IPC. Learned Trial Court while ordering the conviction of the accused Loola under Section 304 Part-II IPC has taken into consideration the fact that

the incident has suddenly occurred. In fact, accused Loola had got upset because deceased Bagdal was coughing. Due to this reason, injury was

inflicted by accused Loola with a farsi on the head of Bhagdal. So far as the accused Loola is concerned, he had not repeated the blow to the

deceased. Farsi was recovered on the basis of the statement suffered by accused Loola under Section 27 of the Indian Evidence Act, 1872.

Learned trial Court, thus, rightly came to the conclusion that accused Loola had no intention to commit the murder of the deceased but had the

knowledge that the injury inflicted by him on the head of Bagdal could result in his death.

In the facts and circumstances of the present case, learned trial court had, thus, rightly ordered the conviction and sentence of the accused Loola

under Section 304 Part-II IPC and had rightly acquitted accused Loola of the charge framed against him under Section 302 IPC. So far as the other

accused are concerned, they have died during the pendency of the revision petition. Hence, we are of the opinion that the appeal as well as the

revision petition are liable to be dismissed.

Accordingly, D. B. Criminal Appeal No.83/1987 and D. B. Criminal Revision Petition No.198/1987 are dismissed.