Partly allowed

Ramphool v. State of Rajasthan through Pp

Rajasthan HC27 Nov 2018CRLAD/95/2018

Case brief

AI extract

What is this about?

The High Court of Rajasthan partly allowed the criminal appeal. The court substituted the conviction for the offence under Section 304 Part-I IPC with Section 304 Part-II IPC due to lack of intention to cause death, based on evidence of a reverse-side axe strike. Conviction under Section 447 IPC was set aside, and the appellant was sentenced to six years and six months rigorous imprisonment.

What did the court decide?

Substitution of conviction from Section 304 Part-I IPC to Section 304 Part-II IPC; set aside of conviction for Section 447 IPC; reimposition of sentence for five years and six months rigorous imprison

Ramphool 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. 95/2018

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Ramphool S/o Shri Rodu Bairwa, aged about 31 years, R/o Bairwa Ki Dhani, Chikana Thana Niwai, Distt. Tonk. Raj. Presently Lodged In Distt. Jail At Tonk

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----Appellant

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Versus

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State Of Rajasthan Through Public Prosecutor.

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----Respondent For Appellant(s) : Mr. Suresh Sahni, Mr. Ram Mohan Sharma and Mr. M.S. Solanki For Respondent(s) : Ms. Sonia Shandlilya, 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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27/11/2018

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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, the appeal itself has been heard finally.

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This appeal has been filed against the order dated 20.2.2018, passed by Additional Sessions Judge, Tonk in Sessions case No. 43/2013. The appellant has been convicted and sentenced as under:-

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S.No.	Conviction	Sentence	Fine of Rupees per Accused	Default in Payment of Fine
1.	U/S 447 IPC	3 Months Simple Imprisonment	-	-
2.	U/S 323 IPC	1 Year Simple Imprisonment	500/- Rs.	15 Days Simple Imprisonment
3.	U/S 304 Part First IPC	Life Imprisonment	10,000/- Rs.	3 Months Simple Imprisonment

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(2 of 9)

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Brief facts of the case :

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The complainant Kedar lodged an FIR with the Police Station Newai on 28.5.2013 alleging that at around 8.30 AM, while he, with his uncle and uncle’s son Mohan, were cultivating the land, around 20-25 persons came equipped with weapons. Amongst 20-25 persons, he was knowing Shyoji, Ramphool Bairwa and Nandkishore and their wives. Shyoji, Ramphool Bairwa, Nandkishore were having axe in their hands, whereas, ladies were having `Kudali’. The accused surrounded the complainant, his uncle and uncle’s son Mohan. The accused Shyoji, Ramphool Bairwa and Nandkishore thereupon caught hold of his uncle Om Prakash. Ramphool caused a head injury to his uncle Om Prakash by an axe. Shyoji also caused injury to deceased by an axe. His uncle’s son Mohan was also caused injuries by the accused. It was caused by Nandkishore by an axe and other injuries by the ladies using Kudali. Uncle Om Prakash was then taken to Hospital at Newai from where he was referred to Mahatma Gandhi Hospital, Jaipur. The uncle was declared dead on the next day.

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On the aforesaid FIR, investigation was caused by the police, followed by a charge-sheet for the offence under Sections 447, 323, 324, 302, 147, 148 and 149 IPC. The learned trial court framed charges for offences under Sections 147, 148, 302, 302/34, 324, 324/149, 323, 323/149, 447 and 447/149 IPC. It was not admitted by the accused, thus trial commenced. The prosecution produced twenty two witnesses apart from forty three documents to prove their case. The statements of accused were recorded under Section 313 Cr.P.C. and they produced three witnesses in defence apart from twenty eight documents. The

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(3 of 9) [CRLAD-95/2018]

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trial court found commission of offence by the accused but it was taken under Section 304 Part-I IPC. The conviction and sentence for the aforesaid offence was made along with offence under Section 323, 447 IPC.

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Learned counsel for the appellant submits that the occurrence took place when the complainant party came on the agricultural field in possession of accused party. They tried to remove bundle of mustard as well as fire-wood. They were initially asked not to do it by Sunita. She was slapped by the complainant party. The accused Shyoji, Ramphool Bairwa, Nandkishore immediately came on the place of occurrence. They asked the complainant party not to remove bundle of mustard as well as fire-wood and if any dispute about the boundaries of the land exists, let it be settled through Girdavar. The complainant party did not stop there, rather, caused injuries to the accused party and, in self-defence, the accused party also caused injuries to the complainant party. The learned trial Court ignored the aforesaid aspect.

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A case of self-defence was made out and, accordingly, accused should have been acquitted of the offence. A reference of statements of PW/8 Mohan and PW/16 Rukmani has been given to show possession of the appellant on the land in dispute. This is enough to show that the complainant party was aggressor, and therefore, even cross-case was registered against them. They were, however, acquitted by giving benefit of doubt. The facts on record show that the appellant acted in self-defence and otherwise they did not cause occurrence with premeditation. The occurrence took place on the spur of moment. Therein two member of

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(4 of 9)

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accused party received injuries. The appellant Ramphool has received, in all, four injuries.

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It is contended that the circumstances on record show that occurrence took place on the spur of moment and it was not with the intention to cause such an injury which may result into death. Learned trial court committed error while convicting the accused for offence under Section 304 Part-I IPC. It has failed to take note of the exceptions given under Section 300 IPC. If the entire evidence of the prosecution is looked into, case does not travel beyond Section 304 Part-II IPC, otherwise if the case of the appellant is considered, he should have been acquitted pursuant to the right of self-defence. The prayer is accordingly to cause interference in the order passed by the trial court.

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The learned Public Prosecutor has opposed the arguments raised by the learned counsel for the appellant. She submits that the trial court has rightly convicted the accused for the offence under Section 304 Part-I IPC. As per PMR-Ex.P/29, the deceased has received a chopped injury which was caused by the appellant by a sharp edged weapon. The aforesaid is enough to show intention of the appellant to cause such an injury which may result in death. The case is thus not falling in any of the exceptions under Section 300 IPC. In view of the above, and as the possession of the appellant on the land in dispute is not proved, the case would not fall under Section 304 Part-II IPC.

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It is also stated that a case of self-defence is not made out. If the appellant acted in self-defence, they exceeded to their right of self-defence, thus a case of acquittal of the accused is not made

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(5 of 9)

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[CRLAD-95/2018]

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out. Looking to the evidence on record, the order of the trial court may be maintained.

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

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The facts on record show that cross-cases were registered in reference to the incident took place on 28.5.2013 where both the parties received injuries. The injured Om Prakash was taken to hospital at Newai where MLR was prepared. He was thereafter referred to Mahatama Gandhi Hospital, Jaipur where he later on died and, accordingly, PMR Ex.P-29 was prepared.

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Learned counsel for the appellant has mainly raised two issues for challenge to the order of the trial Court. The first argument is regarding self-defence. Reference of statements of PW/8 Mohan and PW/16 Rukmani has been given. Those witnesses (PW/8 Mohand and PW/16 Rukmani) are none else but son and wife of deceased- Om Prakash. Amba Lal admitted existence of bundle of mustard and firewood in the possession of appellant. When they tried to remove the bundle of mustard by a tractor, occurrence took place. The aforesaid evidence has been led by the prosecution itself. In view of the above coupled with cross-cases, the right of self-defence has been claimed.

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The other argument is for alteration of offence from Section 304 Part-I IPC to 304 Part-II IPC. It is on the pretext that the occurrence took place on the spur of moment when complainant party came to remove the bundle of mustard and fire-wood in possession of the appellant party. The injury by an axe is from reverse side, thus there was no intention of the appellant to cause such an injury which may result in death. The alternative prayer

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(6 of 9)

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is to bring the conviction for offence under Section 304 Part-II IPC.

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To appreciate the argument of counsel for the appellant and also of Public Prosecutor, we have gone through the record. PW/6 Kedar has stated about the incidence. He has stated that accused Ramphool caused head injury to deceased by an axe by using it from reverse side. The said witness has not stated about use of axe from front side.

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PW/4 Vishnu has corroborated his statement. He has also stated about use of axe by the appellant from reverse side. The statements of PW/4 Vishnu and PW/6 Kedar have been corroborated by PW/7 Rameshwar also.

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PW/8 Mohan is son of the deceased. He has given description of the incidence but, in the cross-examination, it has admitted that bundle of mustard and fire-wood were lying in the agricultural field. It was in possession of the appellant party. The appellant and Shyoji came on the place of occurrence and stated about the settlement of dispute, if exists about the boundaries. The occurrence took place thereafter.

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The aforesaid fact shows that the accused had not come with premeditation to cause the offence and otherwise they were not having intention to cause injury resulting into death.

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The question, however, remains as to whether the appellant was having right of self-defence so as to be acquitted of the offence. The evidence produced by both the parties does not make a case of self-defence. It is true that there exist cross-cases but it has not been proved that the occurrence was first caused by the complainant party and, in retaliation, the appellant acted. In

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(7 of 9)

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absence of evidence to that effect, a case for self-defence would not be made out. The complainant party was tried separately in cross-case and accused therein have been acquitted.

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Taking into consideration the aforesaid, we are considering the alternative prayer made by learned counsel for the appellant.

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We have made reference of statement of PW/4 Vishnu, PW/6 Kedar and PW/7 Rameshwar to show that they have stated use of axe by the appellant from reverse side. The statement of PW/8 Mohan has been corroborated by PW/16 Rukmani. It is regarding possession of appellant on the land. Existence of bundle of mustard and fire-wood has also been admitted. PW/8 Mohan has also stated that they came with a tractor to remove the bundle of mustard and firewood and at that stage, the incident took place where an axe, which remain readily available in villages, was used from the reverse side to cause injury to deceased Om Prakash. He did not die on the spot. He was taken initially to a hospital in Newai, followed by a private hospital in Jaipur, where he died.

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Learned Public Prosecutor has referred post mortem report Ex.P/29 to show that deceased received a chopped injury, thus a case under Section 304 Part-II IPC would not be made out. Learned counsel for the appellant has made reference of MLR Ex. P/19 along with statement of PW/10 Dr. Asif Hussain. In the MLR, injury to deceased Om Prakash is shown to be a laceration. PW/10 Dr. Asif Hussain has proved the said injury.

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The prosecution could not explain as to how the subsequently, injury of laceration could convert into chopped injury. Taking into consideration the aforesaid and the statement

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(8 of 9)

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of PW/4 Vishnu, PW/6 Kedar and PW/7 Rameshwar, we are not inclined to accept the argument of the learned Public Prosecutor.

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PW/4 Vishnu, PW/6 Kedar and PW/7 Rameshwar produced by

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the prosecution have stated about use of axe from reverse side. It cannot result in chopped injury. Statements of PW/4 Vishnu, PW/6 Kedar and PW/7 Rameshwar are corroborated by statement of PW/10 Dr. Asif Hussain and PMR Ex.P/29.

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Accordingly, we find that the occurrence has not taken place with premeditation and otherwise injury caused by the accused was not with intention to cause death. Therefore, we find that case does not travel beyond Section 304 Part-II IPC. Accordingly, we are inclined to cause interference in the order of conviction and sentence and substitute it from offence under Section 304 Part-I IPC to 304 Part-II IPC. While maintaining the conviction and sentence for the offence under Section 323 IPC, we set aside the order of conviction and sentence for the offence under Section 447 IPC it is in reference to statement of PW/8 Mohan, PW/16 Rukmani and PW/22 Rajesh Verma, Investigating Officer.

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The appellant has been sentenced to life imprisonment for the offence under Section 304 Part-I IPC. Since conviction has been substituted, we cause interference in the sentence also.

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Taking into consideration the evidence of the prosecution and evidence in defence, we sentence the appellant for the offence under Section 304 Part-II IPC for five years and six months R.I and fine of Rs. 10,000/-, in default of payment of fine, to further undergo three months SI. The sentence would run concurrently.

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(9 of 9)

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With substitution of conviction and sentence, the appeal is

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partly allowed as given above.

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(BANWARI LAL SHARMA),J

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(M.N. BHANDARI),J

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//bmg 9

Ramphool v. State of Rajasthan through Pp

Case brief

What is this about?

What did the court decide?

Ramphool v. State of Rajasthan through Pp

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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