Partly allowed

Shriram v. State of Rajasthan through Pp

Rajasthan HC3 Dec 2018CRLA/1496/2016

Case brief

AI extract

What is this about?

The High Court substituted the appellant's conviction for murder under Section 302 IPC with culpable homicide not amounting to murder under Section 304 Part-II IPC, altering the sentence to seven years imprisonment and a fine of Rs. 10,000 after finding possession was with the accused and the incident arose from their provocation.

What did the court decide?

Conviction under Section 302 IPC reduced to Section 304 Part-II IPC; sentence fixed at seven years imprisonment and a fine of Rs. 10,000.

Shriram Vs State of Rajasthan through Pp — Murder and Culpable Homicide | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Criminal Appeal No. 1496/2016

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Shriram S/o Gangabishan B/c Gurjar, R/o Village Hathona, Police Station Baroni, Distt. Tonk Raj. Presently Lodged In Distt. Jail, Tonk

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----Appellant

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Versus

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State Of Rajasthan Through PP

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----Respondent

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For Appellant(s)	: Mr. Snehdeep Khyalia with Mr. Akshat
	Deewan and Akshay Singh
For Respondent(s)	: Ms. Sonia Shandliya, PP for State.

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HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE BANWARI LAL SHARMA

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Judgment

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03/12/2018

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The appeal is listed on the application for suspension of sentence, however, with the consent of learned counsel for the parties, it has been heard finally at this stage.

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The police registered an FIR based on a written report of Sukhpal on 29.9.2011. It was stated that on 27.9.2011 at around 9-10 A.M., complainant’s brother Srawan was working in the agricultural field along with complainant’s wife. At that time, Gangabishan, Shriram, Sitaram, Kalu, Smt. Madni, Smt. Moji and many others came and attacked Srawan and complainant’s wife Prahladi. The accused were equipped with axe and ‘Gandasi’. Both the injured were taken in ambulance to hospital.

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The FIR was registered for the offence under Section 143, 447, 323 IPC. During the course of investigation, the injured

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(2 of 6) [CRLA-1496/2016]

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remained unconscious. The offence under Section 326 and 307 were added and thereupon deceased Sravan died on 3.12.2011, thus, Section 302 IPC was also added.

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After investigation, the police filed charge-sheet against Gangabishan, Shriram, Sitaram, Kalu, Smt. Madni and Smt. Moji and thereafter, on 14.12.2012, against Smt. Gandi and Smt. Santara for offence under Sections 147, 148, 149, 323, 302 and 447 IPC. Since the case was triable by the Court of Sessions, it was committed by the Court of Magistrate. The committal court framed charges for the offence under Sections 302, 302/149, 148, 323, 323/149 and 447 IPC. Since the accused did not admit charges, trial commenced. The prosecution produced thirty two witnesses apart from thirty four documents to prove their case whereas statements of accused were recorded under Section 313 IPC. They produced two witnesses in defence apart from production of forty four documents. The learned trial Court convicted and sentenced Shriram for offence under Section 302 IPC and Kalu for the offence under Section 323 IPC. It is while acquitting other accused.

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Learned counsel for the appellant submits that there exists cross-case of the incident took place on 27.9.2011. FIR was lodged by the complainant herein after two days of the incident and after the FIR lodged by the accused party. It was thus with an after-thought. In the cross-case, the complainant herein were convicted and sentenced for the offence under Section 323 IPC. In the present case, appellant Shriram has been convicted for the offence under Section 302 IPC ignoring the fact that complainant were the aggressors. They came on the spot when accused were

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(3 of 6) [CRLA-1496/2016]

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cleaning “Pitro ka Chabutra” in their possession. The complainant caused beating to the accused party and in exchange, deceased Srawan sustained head injury apart from other injuries. Prahaladi received two simple injuries.

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A case for offence under Section 302 IPC is not made out. It is for the reason that the complainant were the aggressors as they came on the agricultural field in possession of the appellant. The possession of the accused on the land has been proved by PW/10 Birdhilal, the Patwari of the area. In his statement, he has made a reference of Khasra No. 905 of the village concern. It is shown to be in possession of accused.

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The members of accused party received grievous injuries, and therefore, case was registered against the complainant for the offence under Section 307 IPC. As per statement of PW/2 Prahladi, Shriram caused head injury to deceased Srawan. Sita Ram has also caused head injury to the deceased by an axe. In the cross-examination, PW/2 Prahladi has stated about litigation of the land. It is, however, admitted that land of Amra was registered in the name of Gangabishan, member of accused party.

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PW/10 Birdhilal has stated that possession of the land was with the accused party. A right of private defence is, thus, claimed by the appellant. It is also stated that injury caused by Shriram is by blunt object i.e. lathi and there exists no repeated blows. He had no motive or intention to cause death of Srawan. Thus, even if the entire case of the prosecution is accepted, it would not travel beyond Section 304 Part-II IPC. The alternative argument of the appellant is thus to bring conviction under Section 304 Part-II IPC.

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(4 of 6)

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[CRLA-1496/2016]

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The complainant’s were also arrested in cross-case. The FIR in the present case was registered as a consequence to it with the delay of two days, thus, appellant is even entitled for acquittal. The accused party otherwise did not come with premeditation to cause injuries to the deceased or injured, rather, it is complainant who came equipped to cause injuries to the accused party. In fact, complainant party provoked the accused to cause occurrence. The prayer is to acquit the appellant and in the alternative to bring the case under Section 304 Part-II IPC.

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Learned Public Prosecutor has opposed the appeal preferred by the accused. She submits that accused appellant caused head injury to Srawan. It was with the knowledge that injury may result in death. It was even with the motive because there was a dispute of land between the two parties. The possession of accused is not proved and otherwise, the accused was the aggressor, thus, neither he deserves acquittal nor benefit of substitution of conviction under Section 304 Part-II IPC. Prayer is accordingly to maintain the order passed by the trial court and dismiss the appeal.

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We have considered the rival submissions of the parties and perused the record.

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The facts on record show that the incident took place on 27.9.2011 at around 9-10 AM. The accused herein lodged an FIR on 27.9.2011 alleging that the complainant party came and attacked on them while they were cleaning “Pitro ka Chabutara” in their possession. The members of complainant party were arrested and to counter it, an FIR was subsequently lodged after two days. The delay in lodging the FIR remains unexplained. The

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(5 of 6)

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[CRLA-1496/2016]

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complainant party made allegation against thirty six persons as against five injuries to the deceased and two injuries to the injured.

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The court below has framed charges with the aid of Section 149 IPC but looking to the statement of PW/10 Birdhilal, it comes out that land in dispute was in possession of the accused party. Even PW/2 Prahladi has admitted in her cross-examination that the land was registered in the name of Gangbishan, member of accused party. In view of the above, it becomes clear that land in dispute was purchased by the accused party and they were in possession of the land. The complainant came and attacked while accused were cleaning “Pitro Ka Chabutara”. It provoked accused party and occurrence took place as a consequence thereupon.

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The allegation made by the complainant against accused Sita Ram is for causing injury by sharp edged weapon whereas neither the deceased nor injured have received any injury from sharp edged weapon. The injured has received two simple injuries whereas deceased Srawan received four simple injuries from blunt object and one fatal injury on the head. It is again by a blunt weapon. The trial Court thus did not believe statement of witnesses for participation of Sitaram to cause injury by sharp edged weapon. He has been acquitted and main allegation remained against accused appellant Shriram and Kalu who have been convicted for the offence under Section 302 and 323 IPC respectively.

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It has also come on record that the accused has caused only one head injury to deceased Srawan. He has not given repeated blows and otherwise all other injuries to the deceased and injured

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(6 of 6)

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[CRLA-1496/2016]

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are simple in nature. The prosecution has failed to prove intention and knowledge of the appellant to cause such an injury which may result in death to show it to be a case of culpable homicide amounting to murder. This fact has been ignored by the trial court while convicting the appellant for the offence under Section 302 IPC. The facts on record show not only provocation by the complainant party as the possession on the land in dispute was of the appellant. The complainant party came and attacked on the accused.

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In view of the above, we find that case in hand, falls in exception under Section 300 IPC. Thus, we cause interference in the order of conviction for the offence under Section 302 IPC. It is substituted for the offence under Section 304 Part-II IPC.

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Since, we have caused interference in the order of conviction for the offence under Section 302 IPC, we are inclined to cause interference in the sentence. Taking into consideration that the accused party was in possession of the land and complainant party came equipped to cause the incident and in the provocation occurrence took place, we find it appropriate to sentence the appellant Shriram with imprisonment of seven years for the offence under Section 304 Part-II IPC with fine of Rs. 10,000/and, in case of default in payment of fine, to further undergo three months SI.

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The appeal is allowed in part with the aforesaid.

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(BANWARI LAL SHARMA),J. (MUNISHWAR NATH BHANDARI),J

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//bm gandhi 3

Shriram v. State of Rajasthan through Pp

Case brief

What is this about?

What did the court decide?

Shriram v. State of Rajasthan through Pp

Case brief

What is this about?

What did the court decide?

What the court decided

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