Rama @ Ramlal vs State Of Rajasthan

This appeal has been filed against the order dated 05th January, 2017 passed by the Additional Sessions Judge No.2, Kota in Session Case No.35/2016. The appellant has been convicted and sentenced as under :

"For offence under Section 302 read with Section 34 IPC - Life Imprisonment and fine of Rs.50,000/-. In default of payment of fine, to further undergo six months' simple imprisonment.

For offence under Section 325 read with Section 34 IPC - Five years' rigorous imprisonment and fine of Rs.10,000/-. In default of payment of fine, to further undergo three months' simple imprisonment.

For offence under Section 323 read with Section 34 IPC - One year's simple imprisonment and fine of Rs.1000/-. In default of payment of fine, to further undergo one month's simple imprisonment."

The complainant Rajendra made a written report with the Police Station Railway Colony, Kota for the occurrence took place at around 8.00 PM on 09th July, 2011. It was contended that his relatives Sanju, Shani Bai, Rajendra and Ramswaroop were returning to their home after completion of agricultural work. The accused Rama @ Ramlal, Santosh Bai, Sonu, Manish, Latoor and Manju stopped them. The appellant Rama @ Ramlal gave a blow to the deceased Ramswaroop by an axe and other accused gave beating to the deceased and others. Ramswaroop was immediately taken to the hospital but he did not survive.

On the written report, an FIR was registered by the police and after investigation, charge sheet was filed for the offence under Sections 302 read with Section 34, 307 read with Section 34 and 323 read with Section 34 IPC. The trial Court thereupon framed charges for those offences and explianed it to the accused. The charges were denied, thus trial commenced. The prosecution produced twenty five witnesses apart from forty seven documents to prove their case while the statement of the accused was recorded under Section 313 Cr.P.C. Smt. Santosh Bai absconded during trial. The trial Court thereupon convicted and sentenced the appellant for the offence, as described earlier.

Learned counsel for the appellant submits that the complainant party provoked the accused and under sudden provocation, the occurrence took place. It is also stated that the appellant had not given such a blow, which may cause death. The injury caused by the accused was on the left side of ear and not on the head. The allegation for causing head injury is on other accused and both being juvenile were subjected to an enquiry by the Juvenile Justice Board (for short "the JJB"). In view of the above, a case for conviction for the offence under Section 302 IPC is not made out because the appellant did not cause injury with intention to kill the deceased. The prayer is accordingly to acquit the appellant.

Learned Public Prosecutor has opposed the arguments raised by learned counsel for the appellant. It is submitted that there is no evidence to show and prove a case of sudden provocation. The accused party came with intention to cause the occurrence. The motive to cause the occurrence has also come in the evidence if arguments of learned counsel for the appellant are taken into consideration. It was stated that the complainant side abused the accused party but both the parties were separated at that time. After a period of time, present occurrence took place. In view of the above, not only motive and premeditation to cause the occurrence is proved but even the case for alleged sudden provocation gets demolished. It is not that in one and the same occurrence, the appellant caused head injury under sudden provocation but if the case of the appellant is accepted then the incident between the parties took place on two occasions.

Learned Public Prosecutor has made a reference of the evidence produced by the prosecution to prove their case beyond doubt. It is not only the recovery of axe on disclosure of the appellant but the FSL report where blood on the axe was matching to the blood group of the deceased. It is apart from production of eye-witnesses, PW - 1 Rajendra, PW - 2 Sanju and PW - 3 Shani Bai, who have also received injuries in the occurrence. In view of the above, the trial Court has rightly convicted the appellant for the offence under Sections 302, 325 and 323 IPC with the aid of Section 34 IPC. The prayer is accordingly to maintain the order passed by the trial Court.

We have considered rival submissions made by learned counsel for the parties and perused the record.

The FIR was registered on a written report by the complainant Rajendra, who was examined as PW - 1. He has given the same story in his court-statement, as was given in the written report. It is stated that while complainant party was returning to their home after completion of agricultural work, the accused party stopped them. When they asked the reason, the appellant caused an injury to the deceased Ramswaroop by use of an axe. It was on a vital part. The injuries were caused even by other accused. He has proved Exhibit P - 1, the written report and further maintained the statement in cross examination. His testimony has been believed by the trial Court.

The statement of the said witness has been supported and corroborated by PW - 2 Sanju and PW - 3 Shani Bai. They have given the same story, as was narrated by PW - 1 Rajendra. All the three witnesses were present at the place of occurrence, thus are the eye-witnesses. Their statements in chief could not be demolished in the cross-examination.

The statements of PW - 1 Rajendra, PW - 2 Sanju and PW - 3 Shani Bai, referred above, have been supported by an independent witness PW - 5 Bablu. He has also stated that the accused party first obstructed the way of the complainant party. The appellant thereupon caused injury by use of an axe while other accused were having "Lathi" and iron rod in their hands. They also caused injury to the deceased. In view of the above, the prosecution case has been supported not only by the injured witnesses but independent eye witness also. The testimonies of those witnesses have been believed by the trial Court. We find that a case of sudden provocation is not made out. The witnesses were not asked any question in the cross-examination so as to prove a case of sudden provocation.

The appellant, however, relied on the statements of PW - 6 Om Prakash and PW - 10 Pushp Chand to prove sudden provocation. If the statements of these two witnesses are also taken into consideration, it shows that the occurrence in the present case took place after earlier incident where there was a scuffle between the parties and they were separated by the witnesses, as well as by the villagers. The present occurrence took place subsequently. In the light of their statements also, a case of sudden provocation is not made out, rather, it becomes a case where, after first occurrence, the appellant caused the incident with premeditation and motive.

The axe, used in the occurrence, was recovered on disclosure of the appellant vide Exhibit P - 43. The recovery of the axe was made through recovery memo, Exhibit P - 20. The axe used in the occurrence was sent for the FSL report vide letter Exhibit P - 44. The FSL report is Exhibit P - 31.

The perusal of the FSL report shows that Kurta and Pajama of the deceased were having human blood of group "B". The same blood group has been found on the axe, recovered on disclosure of the appellant. In view of the above, not only the axe was recovered on disclosure of the appellant, which was used in the occurrence but it was blood stained also, matching to the blood group of the deceased. The aforesaid evidence has corroborated the statements of the eye-witness as well as injured witnesses.

The other material evidence produced by the prosecution to prove their case is postmortem report of the deceased, Exhibit P - 26. To prove the aforesaid document, statements of PW - 18 Dr.Arun Sharma was produced and his statement was corroborated by PW - 14 Dr. Mamraj Agarwal and PW - 19 Dr.Vishv Deepak Beejawat. PW - 18 Dr.Arun Sharma has given description of the injuries sustained by the deceased. The deceased had received as many as six injuries and all were on the vital parts. The statement of PW - 14 Dr.Mamraj Agarwal shows even two injuries near the ear apart from the head injury. The injuries on the vital parts have been attributed to the accused, that too, by sharp edged weapon. It gets proved by the postmortem report duly proved by PW - 18 Dr.Arun Sharma.

Two accused were juvenile, thus their cases were sent to the JJB to make an enquiry under the Juvenile Justice (Care and Protection of Children) Act, 2015. The prosecution even produced the witnesses for recovery of axe on disclosure of the appellant. It is by the recovery memo Exhibit P - 20. The witness to the recovery memo PW - 11 Smt. Bhagwati and PW - 16 Omveer Singh were examined by the prosecution. They have supported the recovery memo, rather, proved Exhibit P - 20. The postmortem report Exhibit P - 26 has been proved by PW - 14 Dr. Mamraj Agarwal, PW - 18 Dr.Arun Sharma and PW - 19 Dr.Vishv Deepak Beejawat. The FSL report has been proved by the Investigating Officer, PW - 25 Ram Kalyan.

In view of the above the prosecution could prove its case beyond doubt. The appellant has not brought any evidence to prove a case of sudden provocation so as to be given benefit of one of the exception under Section 300 IPC. It is not made out even in reference to the statement of PW - 6 Om Prakash and PW - 10 Pusph Chand, rather, if their statements are taken into consideration, a case of motive and premeditation would be made out.

In view of the above, we do not find any reason to cause interference in the order passed by the trial Court while exercising the appellate jurisdiction.

Accordingly, the appeal fails and is dismissed while maintaining the order passed by the trial Court.

The record be sent back to the trial Court.