Raj Karan and Others vs State

R.N. Ray, J.—This criminal appeal has been preferred against the judgment and order dated 31.8.79 passed by Sri D.N. Sharma, IIIrd Additional District and Sessions Judge, Varanasi, in S.T. No. 81/79, wherein he was pleased to convict Ram Viriksh. Ram Surat and Ram Gulam u/s 147, I.P.C. and 323/149, I.P.C. and sentencing them each to R I. for a period of one year and nine months respectively and convicted Appellant Raj Karan u/s 147, I.P.C. and 302, I.P.C. to undergo R.I. for one year and R.I. for life imprisonment respectively.

The prosecution case in brief is that on 7.12.1974, complainant Ram Agya, (deceased) Bhagwan Das, Moti, Yogendra and Mitthoo were on patrolling duty in the plantation and at about 1 p.m. they saw cattle of village Baigarh grazing in the plantation. They drove the cattle trespassing on the plantation for taking them to the cattle-pond, Naugarh, where they were intercepted by the accused and several other persons of village Baigarh and all of them challenged, they were saying "Maro salo ko na rahaygi bas na bajagi basuri". At this saying, accused Raj Karan struck a lathi blow on the left side of the neck of the (deceased) Bhagwan Das and as a result of which he was injured and fell on the ground and thereafter the accused persons snatched the cattle and went away.

After the occurrence, Bhagwan Das was taken to Chakiya hospital and Mitthoo Ram and Ram Agya proceeded to Naugarh P.S. for lodging an F.I.R. Bhagwan Das was then taken to District Hospital, Varanasi where he succumbed to his injury next day at 6 a.m. On the day of occurrence at 6.10 a.m., complainant Ram Agya lodged a written report of the occurrence which is Ext. Ka 3, Head Moharrir Tarkeshwar Singh drew up the F.I.R. Ext. Ka 6 and registered a case in the general diary. Thereafter the investigation of the case was entrusted to S.I. Chhotey Lal Sumen. On 10.12.1974, he recorded the statement of the complainant Ram Agya in the village Chikni and the same day he inspected the scene of occurrence and prepared a site plan which is Ext. Ka. 4 and thereafter he was transferred. The investigation of the case was then entrusted to S.I. Raj Bahadur Singh (P.W. 3). On 25.3.1976, he recorded the statements of Ganga Ram (P.W. 1), Moti (P.W. 2) and Yogendra and the same day on the completion of the investigation, charge-sheet Ext. Ka. 1 was submitted against the accused persons and the learned Magistrate took the cognizance u/s 302/147/323/149, I.P.C. and committed the case to the Court of Session and thereafter the IIIrd Additional Sessions Judge, Varanasi upon holding the trial and on due hearing of both sides framed the charges at the trial against all the accused persons.

The Appellants pleaded not guilty and claimed to be tried.

During hearing of this appeal, the arguments in short was pin-pointed and it has been submitted that the case u/s 147, I.P.C. have been proved against all the accused Appellants but so far as the other Appellants are concerned, there was no case u/s 323, I.P.C. as only Appellant No. 1 stuck a lathi blow on the person of Bhagwan Das (deceased) and there was no such evidence against any other accused Appellants and they did anything in furtherence of unlawful assembly. It has been submitted that there was only one lathi blow which hit at the neck and left parietal bone rediating into the left temporal and occipital bones, that as a result of which the deceased Bhagwan Das fell down and later on died. From the very conduct, it appears that the Appellants forcibly took away their catties and the deceased Bhagwan Das was assaulted by a single blow of lathi, as such it was a case u/s 304, Part II, I.P.C. and as it is presumed that before that assault, some altercation took place in between the parties.

Learned A.G.A. submitted that if it is believed that a number of miscreants shouted that "Maro salo ko na rahaygi bas na bajagi basuri", so there was a clear intention of finishing the victim and his party men.

Duly considered the submissions of both sides and perused the records carefully. So far as the statement of P.W. 5, Ram Agya, is concerned, he had not stated as to who gave a challenge to the de facto complainant and his party-men that "Maro salo ko na rahaygi bas na bqjagi basuri" and whether due to that utterance, the Appellants got excited and assaulted the deceased, Bhagwan DaS. From the very conduct and the manner in which the alleged incident took place, it appears to us that the whole purpose of the miscreants was to take their cattle forcibly and as they were resisted in their object. Raj Karan assaulted the deceased by a lathi blow on the left side of the neck resulting fracture of parietal bone rediating into the left temporal and occipital bones. So far as the evidence of Ganga Ram is concerned, he has stated that the Appellant No. 1, Raj Karan shouted like that and that fact was not specifically stated in the F.I.R. and the statements u/s 161, Code of Criminal Procedure. There is no evidence that the other co-accused persons were the members of unlawful assembly and they were armed with deadly weapon with lathi, etc. Accordingly to (P.W. 2), Motl that all the members of unlawful assembly shouted together that "Maro salo ko na rahaygi bas na bqjagi basuri". So over this shouting, there are much contradiction between the statements of one witness and the statements of other. From the post-mortem reports, it is crystal clear that there was single assault on the left parietal bone, left temporal and occipital bones with separation of cornow suliva between frontal and parietal bones.

On scrutiny of the records and on hearing of both sides at length, we are of the opinion, that the prosecution has failed to prove his case u/s 323/149, I.P.C. against the Appellants. We acquit Appellants 2, 3 and 4 from the charge u/s 323, I.P.C. read with Section 149, I.P.C. So, we do not find any substance and material against them as they did not make any overt act so as to bring home the charge u/s 323/149, I.P.C.

In the result, the appeal is partly allowed and we modify the order of sentence relying upon the guidelines as given in the decisions by Hon''ble Apex Court as reported in Food Corporation of India Workers'' Union Vs. Food Corporation of India and others, and also the decision of our Hon''ble High Court as reported in Kapoor Lal v. State of U.P. 1991 ACC 28. The order of sentence is thus modified hereinunder. The accused Ram Viriksh, Ram Surat and Ram Gulam are found guilty u/s 147, I.P.C. only and as they have already suffered imprisonment for sometime. However, it is ordered that each of them should pay a fine of Rs. 1,000 and in default they should suffer R.I. for six months. Appellant Raj Karan has been in jail for about 15 months and as he was released on bail by the courts order dated 14.9.1979. The case arises out of an incident dated 7.12.1974. It is more than 19 years now when the appeal is finally being decided. In our opinion, it would be not very proper to send the accused Appellant. Raj Karan, to jail to undergo R.I. and in the ends of Justice, an amount of fine may be substituted.

In this connection, we place our reliance upon the guidelines given by Hon''ble Supreme Court in the judgments Gadish Chandra v. State of Delhi 1973 (1) SCWR 897. In that decision, the lordships of Hon''ble Supreme Court were pleased to hold inordinate delay in appellate court is a mitigating circumstances which favour soft attitude towards sentence in suitable cases. Since we have held Appellant Raj Karan guilty of the offence u/s 304, Part II, I.P.C. and not u/s 302, I.P.C, so in our opinion, to meet the ends of Justice, we direct Raj Karan to pay a fine of Rs. 50,000 for the offence u/s 304. Part II. I.P.C. and we thus modify the sentence awarded by the learned court below and we also direct that the fine is paid within a period of two months from this date and, then that should be given to the widow of the deceased and the heirs of the deceased. Appellants 2 to 4, if they pay a fine of Rs. 1,000 each within one month from this date, then they should not be taken into custody. However, we make it abundantly clear that the term of imprisonment already suffered or detention as under-trial prisoner by the Appellants 2. 4, be set off u/s 428, Code of Criminal Procedure. If the Appellant No. 1, Raj Karan, does not pay the fine of Rs. 50,000 as directed above, then he shall suffer R.I. for 5 years'' and the period of detention as under-trial prisoner will be set of against the term of sentence u/s 428, Code of Criminal Procedure. If the fine as ordered in modification of sentence of R.I. for the offence u/s 147, I.P.C. is not paid by Appellants 2 to 4, then bail bonds shall be forfeited and the learned court below shall proceed against the sureties according to law and the accused persons be taken into custody and be sent to jail to serve out the remaining period of sentence. If the accused Appellant No. 1, Raj Karan, fails to pay the fine as ordered above within the stipulated period, then his bail bonds shall stand cancelled and the learned court below should proceed against him and the sureties according to law.

Be it noted that no separate sentence is awarded to Appellant No. 1, Raj Karan, for the offence u/s 147, I.P.C.