Partly allowed

Om Prakash v. State of Rajasthan through Pp

Rajasthan HC24 Jan 2018CRLA/741/2013

Case brief

AI extract

What is this about?

In an appeal against conviction for Section 307 IPC, the High Court modified the lower court's judgment. The Court acquitted the appellant of attempt to murder but convicted him of voluntarily causing grievous hurt under Section 326 IPC. The Court also ordered the appellant to furnish a personal bond under Section 437-A CrPC.

What did the court decide?

Appellant acquitted of Section 307 IPC but convicted under Section 326 IPC. Appellant directed to furnish personal bond under Section 437-A CrPC.

Om Prakash 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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S.B. Criminal Appeal No. 741 / 2013

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Om Prakash son of Birbal, by caste Kumawat, aged about 36 years, resident of Oojtu, Police Station Chidawa, District Jhunjhunu(Rajasthan) Presently confined in Central Jail, Bikaner

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--Accused--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. Dheeraj Singhal

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For Respondent(s) : Mr. V. S. Godara, P. P. for State

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HON'BLE MR. JUSTICE VIJAY KUMAR VYAS

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Judgment

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24/01/2018

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By way of this appeal, the appellant has assailed the judgment dated 05.07.2013 passed by learned Additional District & Sessions Judge No. 1, Jhunjhunu Camp at Chidawa, in Sessions Case No. 16/2011 (47/2011) by which learned trial Court while acquitting the appellant for offences punishable under Section 326 and 323 IPC, has convicted him for offences punishable under

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Section 307 and 324 IPC and sentenced as follows:-

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u/s 307 IPC - Seven Years’ Rigorous Imprisonment with fine of Rs.5000/-, in default of payment thereof, to further undergo three months’ Simple Imprisonment. U/s 324 IPC - One Year’s Rigorous Imprisonment with fine of Rs.1000/-, in default of payment thereof, to further undergo one month’s Simple Imprisonment.

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It was further ordered that Rs.5000/- out of fine deposited to be paid to Sushila for expenses of injuries.

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All the sentences were ordered to run concurrently.

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(2 of 7)

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[CRLA-741/2013]

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Brief facts of the case are that on 21.02.2011 at about 7.45 AM Smt. Sushila(PW-1) gave an information to Luxminarayana (PW-11), ASI, Police Station Chidawa in Rukmani Devi Hospital, Chidawa to the effect that 5 days earlier, her husband Om Parkash has asked her to go away with three children and fell down in a well. In the preceding night, When she was sleeping with her husband and others, at about 5:30 AM her husband woke up and suddenly gave a blow of axe on her head. When she tried to save herself, both of her hands got injured by the blow of axe and thereafter her husband fled away. Her children Amit and Sandeep told the incident to the neighbors whereupon Ambulance was called and she was taken to the hospital. The information was recorded on Parchabayan (Ex. P-1) and on the basis thereof FIR No. 54/2011 was registered at police station, Chidawa.

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After due investigation, police submitted a charge-sheet against the appellant. After due commitment of the case, learned Trial Court read over to the appellant the charge for offences punishable under Section 307, 326, 324 & 323 IPC. The appellant denied the charges and claimed trial. Prosecution examined 14 witnesses and exhibited 20 documents. Appellant was examined under Section 313 Cr. P. C. He stated that the evidence rendered by prosecution as wrong and claimed that false witnesses have been produced. He is innocent. He has not committed any offence. He has been wrongly implicated. No evidence was produced in defence. After hearing the argument,

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(3 of 7)

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[CRLA-741/2013]

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learned trial Court disposed of the matter vide impugned judgment and passed the order of conviction and sentence as stated herein above.

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Learned counsel for the appellant submitted that as per injury report (Ex.P-13), no grievous injury was caused on any vital part of the body. As per opinion of the medical officer (Ex.P14), if the victim was not given medical treatment on time she may have died of the injury inflicted on her body. On the basis of these evidences, charges of attempt to murder cannot be said to be proved. Learned trial Court has wrongly appreciated the evidence and convicted the appellant for offence under Section 307 IPC.

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As per Parchabayan (Ex.P-1), there was no eye witness at the time of incident. However, prosecution has examined Amit (PW-5) and Sandeep (PW-14)- the sons of the victim as eye witnesses. Sandeep(PW-14) admits in cross-examination that he did not see the incident and he has deposed in examination in chief whatever her mother asked him to tell. So far, Amit(PW-5) is concerned, his presence at the time of occurrence is not corroborated by Parchabayan(Ex.P-1).

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Learned counsel further contended that the matter is with regard to quarrel between husband and wife. Other members of family have also been examined by prosecution but none of them is corroborating prosecution story. On the contrary, Parti Devi(PW-8) and Santosh Devi(PW-13) have turned hostile. Prosecution has also examined Sunil Sharma (PW-4) and

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(4 of 7)

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[CRLA-741/2013]

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Tarachand (PW-6) neighbours but they have also not supported the prosecution.

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Learned counsel for the appellant further submitted that as per opinion of Dr. Raghuveer Singh(PW-10), expressed in crossexamination, injuries No. 2, 3, 4, and 5 may be caused due to felling down or on colliding with any door like object. Since medical evidence is also not supporting prosecution story, learned trial Court has erred in arriving at a conclusion that story of the prosecution is proved.

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Learned counsel for the appellant has also submitted in alternate, that at the most, offence u/s 326 IPC can be construed to be made out and for that period of custody i.e. more than 5 years, so far passed by the appellant behind the bar, is a sufficient punishment.

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I have heard learned Public Prosecutor. He has submitted that Smt. Sushila (PW-1) the victim has not shaken at all on being cross-examined by the defence. None of the prosecution witnesses has accepted alleged theory of the defence that the injuries were inflicted due to felling down or self inflicted or were caused due to collision with some door like object. Therefore, learned trial Court has rightly convicted the appellant and appropriately sentenced him.

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I have given thoughtful consideration to the rival submissions and gone through all the material available on record.

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Parchabayan(Ex.P-1) has stated that at the time of incident two children of Smt. Sushila (PW-1) were also there. They

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(5 of 7)

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[CRLA-741/2013]

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informed the neighbours and thereupon the ambulance was called and Smt. Sushila was taken to the hospital. So far as other members of the family are concerned, none of them have denied the incident however, they have denied to see the occurrence. Since, that deposition before trial Court was contrary to their statement recorded by police under Section 161 Cr.P.C., they have been declared hostile. Therefore, testimony rendered by the family members has no bearance on the story of the prosecution. Same is the thing with the neighbours, examined by the prosecution. They have also corroborated the occurrence of incident and stated that on knowing the incident they called for the ambulance.

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So far as two children are concerned, Amit(PW-5) is fully corroborating the story of the prosecution and there is nothing on record to disbelieve the testimony of this innocent witness of aged about 16 years. So far as Sandeep(PW-14) is concerned, he has stated that he did not see the incident by his own eyes and he is stating whatever his matter has asked him to tell. Sandeep(PW-14), was 13 years of age at the time of deposition before trial Court. This is also innocent witness and has accepted innocently whatever the truth is. However, it cannot be construed from deposition made by Sandeep(PW-14) that Smt. Sushila(PW-1) and Amit(PW-5) are stating a concocted and false story.

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Dr. Raghuveer Singh(PW-10) has proved injury report (Ex.P-13). As per this injury report, 5 injuries were found on the body of the victim. Out of them one grievous injury caused by a

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(6 of 7)

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[CRLA-741/2013]

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sharp weapon was found at finger of the hand. Injuries found on the vital part of the body that is head, are two in number and both of them were found simple in nature, caused by a sharp weapon. Rest of the two injuries have been found on right forearm and abdomen respectively and are simple in nature. Dr. Raghuveer Singh(PW-10) has no where stated that injuries were sufficient to cause death in normal course neither he has opined that these injuries were fatal. On the contrary, he has given opinion that if she had not been provided medical aid in time, the injuries could have become fatal. It appears that learned trial Court has over-looked the medical evidence and came to wrong conclusion. On the basis of the said medical evidence, the appellant cannot be convicted for an offence punishable under Section 307 IPC.

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14 Since, the ocular evidence rendered by victim and eye witnesses is substantiated by the medical evidence it is proved that due to assault given by appellant, one grievous injury caused by sharp weapon, two simple injuries caused by sharp weapon and two simple injuries caused by blunt weapon were inflicted on the body of the victim.

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Therefore, on the basis of evidence available, the appellant should have been convicted for offence under Section 326 instead of 307 IPC. After appreciation of the evidence, I cannot agree with the finding returned by learned trial Court that the prosecution has succeeded in proving charge of offence under Section 307 IPC against the appellant.

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(7 of 7)

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[CRLA-741/2013]

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Therefore, findings returned by learned Trial Court are to be modified accordingly.

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In the result, the appeal is partly allowed. Appellant is acquitted from the charge of offence punishable under Section 307 IPC but he is convicted for charge of offence under Section 326 IPC. Since the appellant has completed almost more than 5 years and 5 months behind the bar in custody, It will be suffice to punish him with period already undergone by him for the offence. Rest of the judgment and sentence passed by learned trial Court shall remain as it is. The impugned judgment dated 05.07.2013 passed by learned Additional Sessions Judge No.1, Jhunjhunu Camp at Chidawa, is modified to the above extent.

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Keeping in view, however, the provisions of Section 437-A of the Code of Criminal Procedure, accused appellant Om Prakash S/o Birbal is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety in the like amount, before the Deputy Registrar(Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of failing of Special Leave Petition against this judgment or on grant of leave, the said appellant, on receipt of notice thereof, shall appear before the Supreme Court.

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(VIJAY KUMAR VYAS)J.

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Gourav/71

Om Prakash v. State of Rajasthan through Pp

Case brief

What is this about?

What did the court decide?

Om Prakash 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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