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Judgment
In both the Cr. Appeals (D.B. Cr. Appeal No.765/2015 and
D.B. Cr. Appeal No.876/2015) the judgment dated 5.8.2015
passed by the learned Addl. Sessions Judge, Sangariya, District
Hanumangarh in Sessions Case No.24/2013 is under challenged.
D.B. Cr. Appeal No.765/2015 has been challenged by the
accused appellants Ram Kumar and Kuldeep to challenge their
conviction and sentence passed against them by the trial court in
Sessions Case No.24/2013 vide judgment dated 5.8.2015 for the
following offences:
Under Section 304 Part II r/w Section 34 IPC 10 years RI with fine of Rs.60000/- and in default of payment of fine to further undergo one year imprisonment.
Under Section 323 / 34 IPC Three months SI with fine of Rs.500/- and in default of payment of fine to further undergo 10 days SI.
D.B. Cr. Appeal No.867/2015 has been filed by the
complainant Praveen Kumar wherein a prayer has been made by
the complainant-appellant so as to held respondents Ram Kumar
and Kuldeep guilty for the offence under Section 302 read with
Section 34 IPC instead of 304 Part II and read with Section 34
IPC.
As per brief facts of the case, on the basis of written report
(Ex.P/1) lodged by the complainant, the SHO Police Station
Sangariya registered FIR no.581 on 8.9.2013 (Ex.P/2) under
Section 302 and 34 IPC against the accused appellants Ram
Kumar and Kuldeep. In the FIR, the complainant Praveen Kumar
alleged that on 8.9.2013 at about 4.00 pm in the evening when he
with his father Shahb Ram (deceased) was removing the water
tanks from the place, kept reserved for their shop, the accused
Ram Kumar and Kuldeep came there, having iron rod in hands and
with intention to commit murder of his father Shahb Ram and
inflicted injury by the iron rod. The accused Kuldeep inflicted
injury upon head, which is vital part of the body of his father by
iron rod and as a consequence thereof, his father fell down, at
that time, when complainant tried to rescue his father, accused
Kuldeep inflicted injury upon his head by iron rod. Due to injuries
caused, he fell down. The complainant Pradeep Kumar took his
father to the Sangariya Hospital for treatment where doctor
declared his father dead.
After commencement of investigation, the investigating
officer first of all conducted investigation at the place of
occurrence and thereafter went to the hospital. The details of dead
body were recorded in the Government Hospital, Sangariya on
19.9.2013 vide Ex.P/4 in the presence of two witnesses Prithvi
Ram and Surendra Nath. The Panchayatnama of the dead body
was also prepared on the same day in front of four witnesses. The
accused Ram Kumar was arrested on 9.9.2013 vide Ex.P/17 and
accused Kuldeep was arrested on 17.9.2013 vide Ex.P/18. After
arrest, an information was given by the accused Kuldeep under
Section 27 of the Evidence Act on 17.9.2013 at 4.00 am, in
pursuance of said information, the iron rod was recovered on
17.9.2013 at 5.00 pm vide Ex.P/6. The site plan of the place
where iron road was recovered was also prepared vide Ex.P/7 and
details of site were recorded vide Ex.P/7A. No weapon was
recovered from accused Ram Kumar.
The SHO Police Station Sangariya after investigation field
charge-sheet against the accused appellant Kuldeep and Ram
Kumar under Section 302, 323 read with Section 34 IPC in the
court of learned Addl. Chief Judicial Magistrate, Sangariya from
where the case was committed to the court of Addl. District &
Sessions Judge, Sangariya, District Hanumangarh for trial. In the
trial, after providing an opportunity of hearing, the learned trial
court framed charge against the accused Kuldeep and Ram
Kumar.
Both the accused appellants denied the charges and prayed
for trial. In the trial, statements of 11 prosecution witnesses were
recorded to support the prosecution case and 19 documents were
exhibited to prove the charge, thereafter, the statements of
accused appellants under Section 313 Cr.P.C. were recorded in
which they denied the allegations levelled against them by the
prosecution witnesses but no evidence was produced in defence.
The learned trial court after hearing the final arguments,
both the accused Ram Kumar and Kuldeep were held guilty and
convicted for the offence under Sections 304 Part II read with
Section 34 and under Section 323 / 34 IPC and passed the sentence
aforesaid.
In the appeal filed by the complainant (D.B. Cr.Appeal
No.867/2015), it is argued that the finding of the learned trial
court to convict the accused appellants only for offence under
Section 304 Part II read with Section 34 IPC is erroneous because
there is ample evidence to prove the fact that accused appellants
came on spot having iron rod in their hands and inflicted injury
with intention to cause death upon the vital part of the body of the
deceased Sahab Ram. Therefore, obviously they were liable for
conviction under Section 302 read with Section 34 IPC, but the
learned trial court committed a grave error to held the accused
Ram Kumar and Kuldeep guilty for offence under Section 304 Part
II read with Section 34 IPC. Therefore, the judgment impugned
may kindly be set aside to the extent of finding for offence under
Section 304 Part II read with Section 34 IPC and both the accused
may be convicted for offence under Section 302 read with Section
34 IPC and they may be punished for life imprisonment.
According to learned counsel for the complainant-appellant
the prosecution has to prove the intention and motive for
committing murder of Sahab Ram, therefore, conviction may be
altered to offence under Section 302 read with Section 34 IPC.
In D.B. Cr. Appeal No.765/2015 filed by the accused
appellants Ram Kumar and Kuldeep it is submitted that the
appellants are not challenging the incident, but accused appellant
Kuldeep though held guilty for offence under Section 304 Part II
read with Section 34 IPC, but punishment of 10 years with fine of
Rs.60,000/- is not justified because as per finding of the learned
trial court, there is no evidence of motive and intention to cause
death of Sahab Ram. Both the parties are close relatives the
incident took place all of sudden due to some dispute for water
tank, in which only one injury was caused by Kuldeep which is
said to be inflicted by iron road, therefore, the sentence of 10
years may kindly be reduced to already undergone.
With regard to conviction of accused appellant Ram Kumar
for offence under Section 304 Part II read with Section 34 IPC it is
submitted that there is no allegation against him for inflicting
injury to the deceased on vital part of the body and admittedly,
there is finding of the learned trial court that there is no evidence
of prosecution to prove intention or motive of the accused
appellant for causing death of the deceased. Therefore, the
accused appellant Ram Kumar who has not inflicted any injury
upon vital part of the body to the deceased Sahab Ram cannot be
held guilty for offence under Section 304 Part II read with Section
34 IPC because there is no evidence of common intention and
common object, the finding of conviction recorded against him is
contrary to law and facts, therefore, he may be acquitted from the
charge under Section 304 Part II read with Section 34 IPC levelled
against him. Learned counsel for the appellant Ram Kumar further
submits that the appellant Ram Kumar is not challenging finding
for offence under Section 323 / 34 IPC because there is allegation
against him for inflicting simple injury. No other arguments are
raised by the learned counsel for the appellant except the
aforesaid arguments.
Learned Public Prosecutor and learned counsel for the
complainant vehemently argued that it is a case in which as per
evidence on record accused appellants are liable to be held guilty
for offence under Section 302 read with Section 34 IPC, because
prosecution has proved its case for committing offence under
Section 302 IPC. There is no force in the contention raised by the
accused appellants for reducing the sentence of 10 years to
already undergone for accused Kuldeep so also, there is no
strength in the argument to quash the finding of conviction
recorded against the accused appellant Ram Kumar for offence
under Section 304 Part II read with Section 34 IPC. Therefore, it
is prayed that the appeal filed by the accused appellants may
kindly be dismissed and the appeal filed by the complainant may
kindly be allowed and both the accused may be held guilty for
offence under Section 302 read with Section 34 IPC.
After hearing learned counsel for the parties, we have
perused the entire evidence, so also, finding arrived at by the
learned trial court. As per statement of PW--1 Praveen Kumar on
the date of occurrence, which is 8.9.2013 his elder father Ram
Kumar and his son Kuldeep made quarrel for the dispute to
remove the water tank, in the evening when I and my father, who
were removing water tank situated near the shop, his elder father
accused Ram Kumar and his son Kuldeep came on spot with iron
rod, and accused Kuldeep S/o his elder father Ram Kumar inflicted
injury upon head of my father Sahab Ram and Ram Kumar
inflicted one injury upon back of Sahab Ram and also caused
injury upon my hand. Due to said injury his father fell down and
taken to the hospital where he was declared died. It appears that,
quarrel took place all of sudden due to dispute in the family with
regard to construction of water tank, therefore, the learned trial
court held that it is not a case in which accused appellants can be
held guilty for offence under Section 302 IPC.
Upon assessment of finding and entire evidence, it cannot be
said that there is evidence for offence under Section 302 IPC read
with Section 34 IPC. Both the complainant and the respondents
are closed relatives. The deceased Sahab Ram and Ram Kumar
are the real brothers. The witness PW--1 Praveen Kumar and
accused Kuldeep are cousin brothers, therefore, it is obvious that
some dispute arose with regard to construction of water tank, and
in the quarrel. For the said dispute one injury each was inflicted
by the accused appellants. It is also one of the fact that injuries
were caused to the accused Ram Kumar also which is evident from
the injury report available on record. In view of above, it cannot
be said that prosecution has proved its case for committing
offence under Section 302 read with Section 34 IPC. There is no
force in the appeal (D.B. Cr. Appeal No.867/2015) filed by the
complainant Praveen Kumar to alter the conviction from offence
under Section 304 Part II read with Section 34 IPC to offence
under Section 302 IPC.
With regard to conviction of accused appellant Ram Kumar
for offence under Section 304 Part II read with Section 34 IPC, we
have perused the statement of PW--1 Praveen Kumar, as per his
statement, quarrel took place in between the family members, one
injury by iron rod was inflicted by accused appellant Kuldeep on
vital part of body of the deceased Sahab Ram, and as per finding
of learned trial court after considering the post mortem report
and allegation of prosecution no offence under Section 302 read
with Section 34 IPC is made out because there was no motive or
intention of the accused to cause death of the deceased. PW--10
Dr. Navneet Sharma stated before the court that in all injuries
were found upon the body of accused Ram Kumar which is
mention in Ex.P/15. All the injuries were caused by blunt weapon,
but there is no explanation for the injury caused to the accused
Ram Kumar. The statement of PW--10 Dr. Navneet Sharma is as
follows:
"VERNACULAR MATTER OMITTED"
Upon perusal of the post morterm report Ex.P/8 above
statement of PW--10 Dr. Navneet Sharma it is apparent that the
injury no.1 caused by the accused appellant Kuldeep was cause of
death because due to the said injury, deceased went in comma
and died due to loss of blood.
In view of the above statement of PW--10 Dr. Naveneet
Sharma and PW--1 Praveen Kumar (injured witness) and all other
witness, we are of the opinion that it is a case of free fight,
therefore, conviction of the accused appellant Ram Kumar for
commission of offence under Section 304 Part II read with Section
34 IPC is not sustainable in law, but the finding of conviction
recorded against him for offence under Section 323 IPC does not
require any interference.
The learned counsel for the accused appellants is not
challenging the finding of conviction recorded against the accused
appellant Kuldeep for offence under Section 304 Part II read with
Section 34 IPC but prayed that on the basis of evidence on record
and upon the fact only one injury caused by him upon head to the
deceased and cause of death was loss of blood due to said injury,
therefore, the sentence of 10 years may kindly be reduced to
already undergone. The prayer of the accused appellant Kuldeep is
that on the basis of evidence no record, the sentence of 10 years
for offence under Section 304 Part II of IPC is excessive because
as per prosecution case the injury was caused by the accused
appellant on head but deceased died due to loss of blood.
After considering the prayer of accused appellant Kuldeep,
we are of the opinion that sentence awarded to the accused
appellant in the facts and circumstances of the case is excessive.
In case of Jagdish Vs. State of Haryana reported in AIR 2016 SC
3190 in almost identical circumstances, the learned trial court
convicted the accused for commission of offence under Section
304 Part II IPC and imposed punishment of five years with fine of
Rs.2,000/- vide judgment dated 20.12.2003. In appeal the
Punjab and Haryana High Court upheld the said judgment and
dismissed the appeal filed by the appellant vide judgment dated
6.11.2007. The Hon''ble Supreme Court in case of Jagdish
(supra) gave the following finding, which reads as under:
"3. Zile Singh, Krishan Pal, Raj Kumar and Phoola Ram are the residents of village Mowana. On 15.06.2001, at about 4.30-5.00 p.m., when Phoola Ram, after doing his days work, was returning home and he was about to reach home, Nafe Singh armed with gandasi came and challenged and abused him and inflicted a gadasi blow on his head. On hearing the cry of Phoola Ram, Zile Singh and Raj Kumar, sons of Phoola Ram and Krishan Pal, his grandson came there to rescue him. In the meantime, Jagdish armed with lathi came and inflicted lathi blow on each of his hands. Ranjit and Rameshwar also reached there and inflicted lathi blow to Raj Kumar and Krishan Pal, Dharma, son of Sadhu Ram inflicted lathi blow on his shoulder, Jagdish and Ranjit inflicted lathi blow to Zile Singh, who fell unconscious. Arjun, son of Shankar Gadaria and many other villagers rushed to the spot and rescued them from the clutches of the accused. 8. By judgment dated 20.12.2003 in Sessions Trial No. 137/25.08.2003, the Trial Court convicted Jagdish, the appellant herein for the offences punishable under Section 304 Part II and Section 323 of the IPC and sentenced him to undergo rigorous imprisonment for five years with a fine of Rs.2000/- under Section 304 Part II of IPC and for a term of one year for the commission of the offence punishable under Section 323 of IPC. Both the sentences were to run concurrently. In default of payment of fine, to undergo further rigorous imprisonment for six months.
Even then we perused the evidence of PWs 2,10 and 12 and find that it is consistent on all the material issues. It cannot be disputed that all the three witnesses witnessed the incident, which occurred in the evening. There is nothing on record to suggest that these witnesses had any kind of enmity against the appellant or that they were closely related to the deceased or complainant or/and his family. In the absence of anything against these witnesses, their testimony deserves to be accepted and was, therefore, rightly accepted by the two courts below.
24 In the light of foregoing discussion, we have no hesitation in upholding the findings of the two Courts below and hold accordingly that firstly, incident in question did take place as alleged by the prosecution; Secondly, the appellant was present on the spot along with other accused; Thirdly, the appellant was armed with lathi; and Fourthly, the appellant gave lathi blows to Zile Singh due to which he died.
So far as the submissions of the learned counsel for the appellant are concerned, since we perused the evidence and find no error in the findings of the Courts below, the submissions urged deserve rejection. They have otherwise no merit being wholly based on appreciation of the evidence and the facts."
While considering the aforesaid judgment, we are of the
opinion that sentence of 10 years imposed by the learned trial
court for offence under Section 304 Part II read with Section 34 of
the IPC is deserves to be reduced, but we cannot lose sight of the
fact that in the case of Ankush Shivaji Gaikwad Vs. State of
Maharashtra reported in (2013) 6 SCC 770 the Hon''ble
Supreme Court, held that at the time of deciding any criminal case
it is the duty of the Court to take care of damages suffered by the
victim. In this case, the accused appellants are not challenging
the incident and ready to pay compensation, therefore, we
deemed it appropriate to pass an order of compensation also to
the wife of deceased Sahab Ram who is actual victim of quarrel.
The Hon''ble Apex Court gave direction that it is the mandatory
duty of the Court to apply its mind in every criminal case so
as to grant compensation or to refuse compensation to the
victim. The relevant paragraph 66 of the said judgment reads
as under:-
"66. To sum up: While the award or refusal of compensation in a particular case may be within the Court''s discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order under Section 357 Cr.P.C. would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family."
In view of the above discussion, the D.B. Cr. Appeal
No.867/2015 filed by the complainant for enhancement of
conviction for offence under Section 302 IPC is hereby dismissed.
The D.B. Cr. Appeal No.765/2015 filed by the accused
appellants Ram Kumar and Kuldeep is partly allowed. The
conviction and sentence passed against the accused appellant
Ram Kumar for offence under Section 304 Part II read with
Section 34 IPC by the learned Addl. Sessions Judge, Sangariya,
District Hanumangarh in Sessions Case No.24/2013 vide judgment
dated 5.8.2015 is hereby quashed and set aside, however, the
conviction and sentence for the offence under Section 323 / 34 IPC
is hereby maintainable. The finding of conviction recorded against
the accused appellant Kuldeep for the offence under Section 304
Part II read with Section 34 IPC is hereby maintained, but the
sentence of 10 years as imposed against the accused appellant
Kuldeep by the learned trial court is hereby reduced to five years
while maintaining the order of fine.
On the basis of entire evidence and upon the fact that in the
incident in question the victim wife is deceased lost her husband
for no reason, therefore, the appellants are directed to pay a sum
of Rs.5 lacs as compensation to the victim Munni Devi, wife of
deceased Sahab Ram within a period of two months from the date
of judgment.